Lord Turnbull

Sir Andrew Turnbull, KCB, CVO, having been created Baron Turnbull, of Enfield in the London Borough of Enfield, for life—Was, in his robes, introduced between the Lord Butler of Brockwell and the Lord Burns.

Taxation

Lord Steinberg: asked Her Majesty's Government:
	What is their response to the Confederation of British Industry estimate that tax rises since 1997 have cost British businesses £50 billion.

Lord McKenzie of Luton: My Lords, the CBI's figures do not offer a fair and accurate comparison. They include, for example, the yield from windfall taxes and measures to reduce distortions in the tax system, but do not take account of measures to improve the UK business environment. International analysis consistently shows the UK to have the most stable economic framework with some of the lowest burdens on business and lowest barriers to enterprise anywhere in the world.

Lord Steinberg: My Lords, I thank the Minister for his reply, but is he really looking at the facts—retail businesses dropping; manufacturing industry disastrous; confidence dull, dreary and depressing? Does he agree that lower taxes help business?

Lord McKenzie of Luton: My Lords, it is interesting that noble Lords opposite seek to talk down the economy and the success that it represents. The economy has grown continually throughout the life of this Government, with low inflation, low interest rates and high employment levels. On the issue of the impact of taxes on growth, a number of things impact on growth but certainly a stable macro-economic environment is key to that.

Lord Barnett: My Lords, I declare an interest as the chairman of a small AIM-listed company which is not a member of the CBI and, indeed, would not dream of joining while Digby Jones is its director-general. Is my noble friend aware that our main concern regarding taxation is to increase profits and pay more, but the problem is that productivity is very often difficult to achieve because of the regulations that apply especially to small companies? The Chancellor of the Exchequer indicated in his Pre-Budget Report that he had it in mind to reduce unnecessary regulations. Will my noble friend try to ensure that a list is provided for us of where the regulations are to be removed, or, indeed, where they are not to be removed so that we can make representations?

Lord McKenzie of Luton: My Lords, my noble friend is right to focus on regulation as a key aspect of improving productivity, but under this Government we have closed the gap and overtaken Germany in productivity levels; we have certainly closed the gap on France; and we are ahead of Japan. Regulation and reduction of regulation is a key part. My right honourable friend the Chancellor of the Exchequer outlined what is happening in carrying forward the Hampton recommendations to look at the stock of existing regulations, to prevent and remove gold-plating and enable the risk assessment to regulation that needs to be adopted to relieve the burdens on industry, small and large.

Lord Newby: My Lords, does the Minister accept that one of the additional burdens that the Chancellor has placed on businesses of all sizes has flowed from the increasing scale and complexity of tax legislation? Given that the Chancellor is fond of targets, will the Minister suggest to him that he sets a new target with next year's Finance Bill—that at the end of the Finance Bill process there will be fewer pages of tax legislation still on the statute book than there are at present?

Lord McKenzie of Luton: My Lords, the Government have just gone through a significant simplification of the pension legislation, which removed a significant number of pages of legislation relating to pension taxation. It highlights the dilemma that exists between equity on the one hand and simplification on the other. Simplifying the legislation on SIPPs, for example, opened up an attack that was not warranted or intended from the legislation, which has now had to be closed down. There is a balance between getting equity into a system and having simplicity.

Lord Blackwell: My Lords—

Lord Forsyth of Drumlean: My Lords, on simplification of SIPPs, do the Government recognise the importance of having stability in the tax system? For nearly two years the Government encouraged people to set up SIPPs and to put residential and other assets into them. Four months before—after people had invested considerable sums—the scheme is suddenly withdrawn. What about the Government's decision to impose a huge increase in tax on our North Sea oil companies, despite the fact that on the last occasion it resulted in revenues going down? Can we have a bit of stability so that business can plan? If business cannot plan it will invest elsewhere.

Lord McKenzie of Luton: My Lords, it is important for business that there is stability in the system. The macro-economic framework that the Government have put in place has created that. That is why we are the primary destination beneficiary of foreign direct investment into Europe. On the issue of SIPPs, it was made clear from the start that detailed tax rules had to come forward. Given all the publicity that surrounded the possible exploitation of those opportunities, the Government made it clear both in this House and in another place that we would monitor the situation and act if necessary.
	It is interesting to hear the comments on oil taxation from Members opposite, given what happened in the 1980s and the huge influx of revenues that were created and wasted by that government propping up economic failure. All this Government have done is recognise that the increase in oil prices—which has produced returns of something like 40 per cent on capital for North Sea oil companies—ought to be more fairly shared. The proceeds of that extra taxation are being shared in part to protect pensioners from the impact of higher oil prices.

Lord Rosser: My Lords—

Lord Howarth of Newport: My Lords, does my noble friend agree that additional taxation spent on health, law and order, education, training and research has been greatly to the benefit of British businesses? How would he advise the noble Lord and the CBI to factor those sums into their calculations?

Lord McKenzie of Luton: My Lords, I agree entirely with my noble friend. When the CBI looked at tax levels it looked at only one part of the equation. Public investment can be good for productivity and good for business—and it has been under this Government.

Baroness Noakes: My Lords, the Minister has painted a very rosy picture of the economy under his Government, but he has not mentioned that we have plunged down the international competitiveness league tables, and the World Economic Forum says that is to do with the tax burden. In the light of that, can he explain why the Chancellor added another £2 billion, and more, annually to the corporate tax burden?

Lord McKenzie of Luton: My Lords, the announcement that was made on Monday concentrated on the North Sea, and I have dealt with the point on the huge and unexpected additional returns that happened in the North Sea as a result of oil price increases. The noble Baroness need not take my word for the stability that has been created:
	"It has to be said that the Labour Government have delivered the most precious thing for business, which is macro-economic stability, low inflation, low interest rates, low unemployment and growth at the same time".
	That was said by Mr Digby Jones of the CBI in November last year on Radio 4.

Schools: Infrastructure

Baroness Walmsley: asked Her Majesty's Government:
	Whether their policy of upgrading the schools infrastructure is fulfilling the aims of the Department for Education and Skills' sustainable development plan.

Lord Adonis: My Lords, the schools capital investment programme is resulting in sustainable facilities nationwide. We now expect most building projects that we fund to achieve a "very good" or "better" rating under the new schools environmental assessment method, which was developed for us by the Building Research Establishment. This week we also launched the design quality indicator for schools, which will help schools achieve high standards of building design, including energy efficiency, recycling facilities and waste management.

Baroness Walmsley: My Lords, I thank the Minister for his reply. Is he aware that the BREEAM evaluation requires only very basic standards to be met and that a great deal of it is only warm words? In view of the fact that retro-fitting energy-efficiency equipment is always more expensive, why will the Government not use the leverage they have in the provision of money for new school buildings to ensure that they are designed to a very high standard from the start by, for example, allowing the collection of the heat from under playgrounds to heat school buildings?

Lord Adonis: My Lords, I cannot respond to that specific point, but we have high standards in the design of buildings in respect of energy efficiency. The design quality indicator for schools places a high premium on,
	"minimising the requirement for mechanical ventilation, cooling and heating".
	Taken together with Part L of the building regulations, with its specifications for energy performance of buildings, and the new PPS22, which lays down a planning requirement for buildings such as schools to secure 10 per cent of their energy from renewable sources, we estimate that new and substantially refurbished school buildings will be about 25 per cent more energy efficient than those they replace. That is a big step forward.

Baroness Buscombe: My Lords, how can the Minister expect pupils and providers of education to embrace education for sustainable development and energy efficiency when the Government themselves set such a bad example? You have only to walk through Westminster at night to witness the flagrant waste of energy, never mind of taxpayers' money. It is like a scene out of "Star Wars", with all the lights left on permanently in all the government buildings. Does the Minister accept that the Government need to change their ways before preaching energy efficiency and conservation to the education providers, the rest of us and especially our children?

Lord Adonis: My Lords, I think that that goes rather wide of the original Question. We all have to set an example and I believe that on most of the indicators that we have established, the DfES sets an excellent example.

Non-governmental Organisations: Russian Legislation

Lord Truscott: asked Her Majesty's Government:
	What assessment they have made of the likely impact upon United Kingdom non-governmental organisations of the draft legislation in the Russian Duma on the registration of non-profit organisations.

Baroness Royall of Blaisdon: My Lords, the Bill is described as a measure against extremism, terrorism and crime, and would give Russian authorities greater control over NGOs. Our concern is that the draft law, as it stands, may lead to further restrictions on civil society in Russia and could open the way to excessive official obstruction of the work of NGOs, including UK organisations.

Lord Truscott: My Lords, I thank my noble friend for that helpful reply. Bearing in mind that there are about 300,000 NGOs operating in Russia, and that organisations such as Human Rights Watch, Amnesty International and Penal Reform International could find themselves banned, will Her Majesty's Government raise this issue with the Russian Government and President Putin to ensure that he holds to his pledge to uphold civil society in Russia and call upon him to reject this draconian draft law? Furthermore, will Ministers remind the Russian Government of their human rights obligations under the partnership and co-operation agreement with the European Union and bearing in mind their presidency of the G8 next year?

Baroness Royall of Blaisdon: My Lords, as noble Lords would expect, we have been proactive in our response to reports about this draft law. For example, on 2 December, our ambassador in Moscow delivered an EU demarche to the Deputy Foreign Minister outlining the EU's concerns. We welcome reports that on 5 December President Putin asked the Russian Government to prepare amendments to the draft law as soon as possible to take into account concerns expressed by the European Union and the Russian Public Chamber.
	The UK and Russia hold regular bilateral human rights dialogues and our position is made clear, together with our European partners, through EU-Russia human rights consultations. We will continue to remind Russia of its obligations vis-à-vis human rights, including in its role as president of the G8.

Baroness Rawlings: My Lords, following an article in last week's Moscow News, that stated:
	"The State Duma upheld a budget initiative to set aside some 500 million rubles . . . to finance Russian NGOs outside of Russia",
	what communications have Her Majesty's Government had with the Russian Government to allow our bona fide NGOs to continue to operate freely in Russia?

Baroness Royall of Blaisdon: My Lords, I regret to say that I was unaware of that article but, as I mentioned in my earlier response, the UK Government have made representations—we have also done so on behalf of the EU as presidency—to the Russian Government on several occasions.

Lord Wallace of Saltaire: My Lords, further to the question put by the noble Baroness, Lady Rawlings, have the Government considered how useful it would be to demonstrate that there is a reciprocal relationship among open societies that allows one's NGOs naturally to operate across borders in each other's countries? The Russians appear to consider that foreign NGOs are a one-way force for intervention in their society. Can the Government, for example, make greater efforts to ensure that when we hold elections in this country, Russian observers are invited to inspect them? If we expect to inspect Russian elections, we should, in turn, invite others to come and inspect ours—which are not without occasional imperfections.

Baroness Royall of Blaisdon: My Lords, I note the point made by the noble Lord about elections and observers. In the case of the party that I know best, we invite observers to elections and if all other parties welcomed observers from other countries to observe the conduct of elections in this country, the Government would welcome that.

Lord Swinfen: My Lords, do any Russian NGOs operate in the United Kingdom and, if so, what are they doing?

Baroness Royall of Blaisdon: My Lords, I do not have a direct answer, but I hope that Russian NGOs operate in the United Kingdom, because that would be a good way of ensuring that Russian and UK NGOs co-operated and learnt from each other. If there are none, I hope that there will be.

Lord Phillips of Sudbury: My Lords, I visited Russia a number of times after it gained its freedom to help re-establish its charitable and voluntary sector, and I still have professional contacts there. Will the Government press two points upon the Russian Government about their new law? First, the options available for British NGOs in terms of constitutional format are too limited, too rigid, too bureaucratic and wholly unsuitable for small charities and foundations. Secondly, there is anxiety that the powers being given to the ministry of justice under the new law leave too much discretion with officials and could be used in a way that would be counterproductive to the work that many NGOs are trying to carry out there.

Baroness Royall of Blaisdon: My Lords, I note those useful points; we will certainly make representations in the way the noble Lord suggests. One of the Government's fears is that the law will be applied selectively. We will do our utmost to ensure that, if and when the law comes to pass, it will be applied according to the rule of law.

Lord Avebury: My Lords, is the Minister aware that the favourable opinion expressed by Her Majesty's Government on behalf of the European Union regarding the elections in Chechnya is not shared by Russian NGOs, which this morning have issued a statement contradicting our statement? Will the noble Baroness ensure that in making representations to the Russian Government about the freedom of their NGOs, particular regard is paid to those that are under fire because of the opinions they expressed on Chechnya?

Baroness Royall of Blaisdon: My Lords, I was not aware of the specific comments but the Government are certainly aware that a number of Russian officials acknowledged that the elections were not perfect and that some observers raised concerns. We are urging the Russian authorities to investigate any reports of irregularities or intimidation and will continue to do so.

Lord Harrison: My Lords, will my noble friend respond, in particular, to the point made by my noble friend Lord Truscott that this is an apposite opportunity for the United Kingdom, through the European Union and the new framework co-operation agreement, to form some resolution on the question of the treatment of NGOs in Russia?

Baroness Royall of Blaisdon: Yes, my Lords. Indeed, the Government have been acting for several months as the presidency of the EU. Everything that we do we do as the EU, and we will certainly continue to work within the framework of the co-operation agreement to put pressure on the Russian Government to ensure that this law is as it should be.

Lord Mackie of Benshie: My Lords, can the Minister tell the House whether the multiplication of charity organisations in Russia is as bad as it is in this country?

Baroness Royall of Blaisdon: My Lords, I understand that there are more than 200,000 NGOs in Russia. That sounds like an extraordinary amount, but there are a lot of them and these are fledgling NGOs. We certainly support the creation and nurturing of civil society in Russia because we believe that that is an essential part of a democracy. But I take the point to which the noble Lord alludes.

Baroness Williams of Crosby: My Lords, in light of that reply, what is the position of NGOs in Russia that have considerable support from the European Union and the Council of Europe? She will be aware that in the past non-governmental organisations involved in democratisation—that is, independence of the courts and so on—have had at least some support from EU and Council of Europe funds. Does she know whether the proposed draft law would be likely to affect that relationship?

Baroness Royall of Blaisdon: My Lords, at the moment we are not entirely sure how the new law would affect such organisations and their funding, but as things become clearer I will endeavour to keep the noble Baroness informed.

Schools: League Tables

Baroness Morris of Bolton: asked Her Majesty's Government:
	Whether school league tables provide an accurate guide to parents as to the qualities of an individual school.

Lord Adonis: My Lords, the achievement and attainment tables give an accurate guide to the performance of schools in respect of the test, examination and attendance results that they report. However, we have always made it clear that these published results tell only part of the story of a school's qualities and effectiveness. Readers of the tables are also advised to consider other information, such as Ofsted reports, school prospectuses, local knowledge and, from next spring, the school profile.

Baroness Morris of Bolton: My Lords, I thank the Minister for his reply, but some of the schools at the bottom of the league tables have been praised by their Ofsted reports and described as effective and good value for money. Can the Minister explain that mismatch and say whether league tables or Ofsted reports give parents the best information?

Lord Adonis: My Lords, as I said, parents need to base their judgments on a wide range of information, of which the performance tables and Ofsted reports are only a part. I think that the noble Baroness is referring to a report in the Daily Telegraph last week in respect of a certain number of schools which were low-performing. I do not think that she should generalise from that about the relationship between Ofsted reports and low-performing schools at large. Indeed, a number of the schools in that Daily Telegraph table had entered very small numbers of pupils for the tests, and that is another factor to be taken into account.

Baroness Massey of Darwen: My Lords, does the Minister agree that other parents are an excellent—probably the best—source of information about a school? Does he agree that it is therefore important that parent-governors on governing bodies are encouraged to be ambassadors and representatives of schools in a local community?

Lord Adonis: My Lords, I entirely agree with my noble friend. It is also important that schools report regularly to parents. That is why our recent education White Paper increases the minimum requirement for reporting to parents to once a term in place of once a year.

Baroness Walmsley: My Lords, the Minister will be aware that in addition to the league tables based on SATs, other tables are also being prepared based on value added. First, can he say how these are computed and how reliable they are? Secondly, is he not concerned that only one teacher in 10 says that league tables have a positive impact on their teaching?

Lord Adonis: My Lords, I am not sure where the noble Baroness got the figure of one in 10. I expect it is from a survey where that kind of result can be procured. We need to be clear that league tables are not for teachers; any good teacher will know what the performance of his pupils is. The purpose of performance tables is to benefit parents, who have a right to see the performance of their schools in key test and examination results. There is no issue on that.
	In respect of value added, it measures value added between key stages. In the case of primary schools, it is between key stage 1 tests at the age of seven and key stage 2 tests at the age of 11, and in respect of secondary schools, between key stage 2 tests and GCSE.

The Countess of Mar: My Lords, does the Minister agree that in sparsely populated rural areas there is very little choice for parents? Will he say what purpose the league tables serve there?

Lord Adonis: My Lords, I agree that there is often very little choice of schools in rural areas.

The Lord Bishop of Coventry: My Lords, is the Minister aware that the school that came top of the primary league tables is a Church of England school? Would he like to comment on the reported remarks of the head teacher to the effect that that prestigious position was achieved by paying scant regard to the requirements of the national curriculum?

Lord Adonis: My Lords, it is indeed a Church school and I pay tribute to it. It is also in the constituency of the new Leader of the Opposition and, no doubt, he had something to do with its results as well. Actually, the head teacher of the school did not say that she paid scant regard to the national curriculum; she said that she paid less regard to the literacy strategy. But she also said that teaching methods in her school had drawn from it, so mixed messages were being sent by the head teacher.

Baroness Buscombe: My Lords, given that the unions and a number of head teachers have called for the scrapping of league tables, and given the unease of some Labour Back Benchers, can the Minister give the House an assurance today that league tables will stay?

Lord Adonis: Yes, my Lords.

Lord Renton: My Lords, although exam results will vary considerably across the country, do the Government not feel that they are the most powerful guide to the quality of teaching at individual schools?

Lord Adonis: My Lords, they are an important guide but, as I said earlier, they should be seen in conjunction with Ofsted reports and local knowledge, recognising that not all of what schools do is measured by test and examination results. Schools do a great deal in respect of, for example, sport and the arts that is important to the building up of a good school but is not measured by test and examination results.

Baroness O'Neill of Bengarve: My Lords, does the Minister accept that league tables do not measure academic performance in all cases because the measuring rods have been distorted in certain ways? This is particularly evident in secondary schools where a Telford Technology GNVQ counts for four GCSEs and where, until recently, neither mathematics nor English results had to count in the tally of the five A-C grades at GCSE. Will the Minister tell us that we will have clearer and less misleading measuring rods in the areas that can be measured?

Lord Adonis: My Lords, on the two specific issues raised by the noble Baroness, she will know that in two years' time we are going to include English and maths in the five good GCSEs and that we are also phasing out the four unit award in respect of GNVQs. Those points are being met. I believe that, taken as a whole, performance tables give a good guide to the academic performance of schools.

Baroness O'Cathain: My Lords, will the Government consider preparing an aide-mémoire for parents of school children so that they can make their way through the morass of various types of tables and make a sane and sensible decision about where to send their children to school?

Lord Adonis: My Lords, I hope that parents do not need aide-mémoire from me to help their judgment on what constitutes a good school. The best advice I would give parents is to visit schools themselves and form their own judgment.

Lord Campbell-Savours: My Lords, what are the weaknesses of the league table system?

Lord Adonis: My Lords, taken as a whole, it has been a highly constructive addition to the education system and is why school results in primary and secondary schools have risen consistently and significantly since performance data have been published.

Lord Bramall: My Lords, does not the Minister also agree that education is not only about passing exams, it is even more perhaps about motivation for continuing to thirst after knowledge in future years?

Lord Adonis: My Lords, I agree that that is also important in producing a rounded education for our young people.

The Earl of Listowel: My Lords, by what means is recognition given to those schools which make particular efforts to include children who are cared for by the state; for instance, in developing the role of the designated teacher and the personal education plans for such children?

Lord Adonis: My Lords, the value-added tables give recognition to achievement of pupils in the categories the noble Earl described. We give strong incentives to schools to recruit such pupils, and, once in the schools, they have a massive interest in seeing that they perform well.

London Olympic Games and Paralympic Games Bill

Brought from the Commons; read a first time, and ordered to be printed.

Estate Agents (Independent Redress Scheme) Bill [HL]

Lord Dubs: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
	Moved, That the order of commitment be discharged.—(Lord Dubs.)

On Question, Motion agreed to.

Terrorism Bill

Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[ The CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
	Clause 1 [Encouragement of terrorism]:

Lord Goodhart: moved Amendment No. 21:
	Page 2, line 34, at end insert—
	"( ) Nothing in this section is intended to apply to statements made solely for the purposes of academic teaching, study or research in support of such activities."

Lord Goodhart: Amendments Nos. 21, 45 and 83 are intended to ensure that the position of academic institutions is made thoroughly safe. This issue will be spoken to primarily by my noble friend Lady Williams of Crosby, who was briefly absent from the Chamber when the amendment was called, but has now returned. In those circumstances, I shall give way to my noble friend. I beg to move.

Baroness Williams of Crosby: I apologise that against the breaking wave of Peers leaving the Chamber I was a little slow in reaching my seat.
	The purpose of these amendments is to exclude from the sweep of the Bill, which as the Committee will know is a wide and not very clear sweep, academic research related to the pursuit of knowledge and to teaching and education. This is a crucial amendment—and it affects Amendment No. 45. Amendment No. 83 is slightly different because it relates to the sections of the Bill that deal with noxious and other substances. I will come back to that. There are two great problems for those in the academic library and university world.
	First, we fully recognise and appreciate the concessions that the Minister outlined in Committee on 5 December. Nevertheless, while she graciously agreed to an extension of the defence against a charge that somebody has been disseminating publications, and in other ways instructing the encouragement of terrorism, the difficulty is that the defence does not deal with the cases that might be brought against an academic or a librarian, given that no question of intent is written into the Bill. We will come back to that in a later group of amendments.
	Although there may be an effective defence because the Minister has altered the definition of recklessness to be subjective, not objective, many cases may still arise. Universities and libraries are especially concerned by what they describe as the possible creation of an atmosphere of apprehension and fear. By that they mean that, while it remains somewhat uncertain on what basis a particular instructor or librarian may be prosecuted, the possibility of going to court is a substantial inhibition to free and open expression in instruction, teaching, discussion and debate.
	Let me explain what the person concerned may be up against. Initially, they would have to prepare a defence. They may well be engaged in legal expenses to prepare that defence. The very thought of going to a court is itself a considerable inhibition to someone who is genuinely acting as a professional in the university or library world. The real danger of the Bill is what I described on our first day in Committee as the chilling effect. People may deliberately decide not to provide their students with teaching materials or instruct in ways that draw on examples of terrorism or action involving violence. Librarians may be unwilling to loan books that could possibly be described as encouraging terrorism.
	The problem here is a direct contradiction. On one side, it is the responsibility of universities and their associated libraries to try to extend the understanding of that terrifying and little-understood phenomenon. In order to teach classes about such matters as the rise of Islamic fundamentalism or terrorism of the past, such as that of the IRA, a teacher may well want to hand out information that could be used by students in analysing and discussing those matters. It is the essence of the freedom of expression and the free pursuit of knowledge that such information can be made available. However, the responsible and thoughtful academic, recognising that that is a crucial part of instructing his students in such matters, would be inhibited by the thought that he might have to go as far as a court to establish a defence. Much the same is true in the case of libraries where, especially in the case of the major university libraries, it is impossible for them to know the full content of the books that they lend and endorse in the sense of accepting and cataloguing them. That presents a major difficulty.
	When the Minister of State for Higher Education, Mr Rammell, said in another place that many of those fears were misplaced, it was interesting that he immediately referred to the fact that Clause 1 had now been limited by the inclusion of intent. My noble friend Lord Goodhart and other Members of the Committee will raise that in more detail when we discuss the next group of amendments. In addition to the fact that there are real problems about establishing a defence there is the difficulty that many cases that should not come forward will. That will have the chilling effect that I mentioned earlier.
	Let me give another example, which is based on Amendment No. 83. The Bill refers to:
	"the making, handling or use of a noxious substance".
	That is not a bad description of the discipline of chemistry. What does a chemist teaching his science do when he is aware that even the most basic textbooks in chemistry deal with the use, handling and manufacture of noxious substances? The blighting effect on one of the most important areas of the advancement of knowledge in our country could be very grave. There would not just be the blighting effect on existing academics; it could extend to those whom we wish to recruit to our universities and to students. The Royal Society of Chemistry, in a letter to the Home Secretary, which was mentioned on the first day in Committee, drew attention to the extreme problems that that presents for a science teacher, whether in a university, a further education college or elsewhere.
	We suggest, in this important amendment, direct exclusion of those working professionally in those fields and disseminating knowledge or making statements directly related to that professional responsibility. I think that the noble Baroness, Lady Scotland, would agree that, when she put before us the very welcome concessions that she proposed, particularly to Clause 1(7) and Clause 2(9), some of us had a problem ensuring that that covered the area that we are deeply concerned about. Would I be right in putting the following interpretation on what she then said? I do so in a spirit of probing her intentions, not of trying at this stage to criticise them.
	First, on Amendment No. 21, under Clause 1, would academic teaching be excluded unless it directly involved the encouragement of terrorism? Will the noble Baroness consider, for example, putting in a clause that indicates the exclusion of people pursuing their professional duties? The insertion of the intent in Clause 1(2)(b) has helped, and so does Amendment No. 79, which removes the reference to suspects. However, does the noble Baroness agree that that does not extend to Clause 2? Would we be right to assume that the noble Baroness proposes to delete the subsection in Clause 1 on recklessness, Clause 1(7)(a), and Clause 2(9)(d)? As such, would I be reasonably right to think that, in the case of recklessness, anyone whose teaching inadvertently encouraged terrorist activities in others would be exonerated, without the reference to intent by the very fact of those deletions?
	Would it be correct to assume that there would be a legitimate defence for any teacher in a university, college or other place of education if they could show that in quoting, publishing or making available literature related to terrorist activities, he or she did not endorse the sentiments and was making them available only for the purposes of education, and that that would be no longer a criminal offence? Does the noble Baroness also agree that, even though the test of defence has been extended, the burden of proof still rests on the defendant? That came out fairly clearly in our discussion on the first day in Committee.
	Is there any kind of defence on the basis of public interest? The Minister will know that in other broadly analogous legislation, for example, the Obscene Publications Act, if an objection is raised in the case of something that extends science, education or literature, that exemption is recognised. In this case would it be acceptable on the grounds of public interest that there should be a proper defence?
	None of that is quite how it ought to be. It would be much better if the second group of amendments concerning intent were written into Clause 2. But short of that, there are very real concerns, which I shall sum up. First, the possibility of criminalising a very wide range of activities remains in the Bill. I think that it was the Joint Committee on Human Rights which specifically said that there should be a definition of the offence requiring intent and likelihood. So far, that has not been met. Secondly, could the defence be mounted on the basis of the professional duties of those concerned? Will the Minister consider that? In particular, will she consider the very grave dangers of the chilling effect of this legislation as it stands? It is still unclear and extremely broad, despite the concessions that the Minister has made or proposes to make. For example, it would be extremely dangerous, because one objection by one student, who might have many motivations for that objection, could put the career of the teacher or lecturer at risk. Amendment No. 83 addresses the position of free discussion of scientific research, which is gravely at risk because of the terminology used so extensively in that clause.

Baroness Carnegy of Lour: I strongly support the noble Baroness, Lady Williams, who has made a broad sweep of her argument and has put the anxieties of universities extremely well. I want to make a simple point, from a non-lawyer's point of view, about natural justice. As I think that the noble Baroness indicated, so far in Committee the discussion has been about protecting librarians by strengthening the defence that they could deploy should they be charged with a criminal offence. It has been explained—if we did not know already—that if there is a strong defence in the Bill, charges will not be laid because it will not be possible to sustain them. But why should a librarian doing the job that he is employed to do be liable to be charged at all? Why should he have to appear in court on such a charge?
	On Second Reading, I spoke specifically about the University of St Andrews, which has an institute for the study of terrorism. In many ways, its situation is no different from any university except that it has a large stock in the library of material about terrorism to support its institute, which not only is useful to researchers, teachers and students, but also could be useful to a terrorist. Suppose a postgraduate student at the University of St Andrews goes to the library and takes out material which he says is to help with a thesis that he is writing. Some time later, a suicide bomber does his worst, say, in London. On searching the terrorists' home, the police find the very collection of material which was taken by the student from the library at St Andrews.
	Surely, Parliament should see to it that there is no question in British law that that librarian should be charged with a criminal offence, whether or not he has a strong defence. Clearly, it should be the student who is liable and should be charged. The librarian should be no more than a witness in court. Amendment No. 45, in particular, or something like it, would solve the problem. I realise that the wording may not be absolutely correct, but an amendment to that effect would mean that the librarian and the university governing body could not be held responsible. Such an amendment could be combined with a form to be signed at the university library on which the person taking out the material would say the purposes for which he requires it. That would be essential. I am no professional, but Parliament should ensure that librarians will not be appearing in court or threatened with appearing in court because of their work and the books that are stocked in the library. That is wrong. I support this amendment very strongly.

Baroness Warwick of Undercliffe: I rise to speak briefly to Amendments Nos. 21, 45 and 83. While I acknowledge that they may have some technical deficiencies, they are supported by the Association of University Teachers and Universities UK, in which I declare an interest as chief executive. Like other speakers, I want to probe the effect of Clauses 1, 2 and 6 on the work of universities and libraries.
	Clause 1 has been substantially improved by government amendment to insert the notion of intent. I understand from what my noble friend on the Front Bench said on Monday that we can expect a further improvement to that clause in the form of an amendment to remove subjective recklessness. Clause 6 will be vastly improved if the Committee accepts government Amendment No. 79, which will remove the notion of suspicion. I believe also that what the Minister proposes for Clause 2, widening the defence in subsection (9), will likewise constitute an improvement. I await the text of the government amendments before being able to pass judgment on whether they will solve the problems that have been identified in these clauses, but I am confident that we are moving in the right direction. I thank the Minister for her willingness to consider constructive solutions. So I find myself in the rather odd position of not quite knowing whether the amendments before the Committee are necessary. However, at least they provide us with an opportunity to probe the Government a little further on the improvements my noble friend has indicated that she will make.
	The intention behind these amendments is to put beyond doubt the question of whether an academic or a librarian, acting in the normal course of teaching and research, will be protected from the unintended consequences of the Bill. The fear, expressed by many academics and their representative bodies, is that academics and librarians, worried about the consequences of teaching or publishing sensitive material, will effectively engage in self-censorship—what the noble Baroness, Lady Williams, called the "chilling effect". That would be a very unfortunate consequence.
	The Minister has already given a helpful general reassurance that teaching, research and associated activities are not intended to be caught by the Bill. However, perhaps I may follow some of the questions put by the noble Baroness, Lady Williams, and ask my noble friend whether she can give a specific reassurance that, for example, an academic teaching political science would safely be able to hand his students a manuscript of a statement made by Osama bin Laden praising the actions of those involved in the World Trade Centre attack if it was his intention to ask his students to consider the rhetorical techniques used by bin Laden to achieve his political ends as part of a course of study. Would it make a difference if the lecturer was aware that the statement in question could have an incentivising effect on some individuals, but that he had no specific knowledge that any member of his lecture group fell into that category, or could he be regarded as "reckless"? Would an academic studying the recent attacks on London be protected from the offence in Clause 1 if he included in a paper a quotation from a radical group praising the actions of the bombers as part of an analysis of those events? Will librarians safely be able to include in their collections books—in one meeting the Anarchist's Cookbook was mentioned in this context—that could be useful to terrorists? How is a librarian to know whether he may include in the collection, or make available for loan, a book which reproduces statements that glorify terrorism? How is a librarian to judge whether such a book contains information that is,
	"wholly or mainly for the purpose of being useful to terrorists"?
	I realise that the Government may not want to accept the amendments. I shall listen carefully to the arguments put by other noble Lords and to the Minister's response because I would like us all to be certain that the Bill will not tie the hands of those working in our academic and library communities who do so much to help us combat terrorism by enhancing our understanding of its causes, methods and motivations.

Baroness Scotland of Asthal: I am very anxious to give my noble friend Lady Warwick and the noble Baronesses, Lady Williams and Lady Carnegy of Lour, the reassurance they need. I appreciate that the Committee is in difficulty because I do not have at this moment the further amendments we propose to bring forward, which would, I am confident, set at rest the minds of the noble Baronesses. I say that because in drafting the Bill the Government were very clear that there was no intention to catch the ordinary philosophical academic discussion which is so much a part of the academic richness inherent in many of our universities and institutions, and, indeed, of the high-quality academic and other debate that takes place in this country. The furthest from our minds was any intention of providing a "chilling" effect on such appropriate discussion.
	The purposes of the Bill as it is, and as it will be when amended, are to ensure that those who act appropriately and professionally in the way discussed by the noble Baronesses will not be criminalised by it. An offence will be committed only by those who know that their pupils or the persons using the literature intend it to be used in the training of terrorists or for other purposes.
	I understand the Committee's anxiety and the anxiety of each noble Baroness who has spoken so far and I shall try now to go through some of the issues which are causing such concern. Academic teaching will not constitute an offence under Clause 1 unless there is encouragement to terrorism; it is done with intent or subjective recklessness; and the person is unable to show that he did not endorse the material. In Clause 2 the offence could be committed only if there was dissemination of a terrorist publication and the person was unable to show that he did not endorse the publication and did not intend it to be of use to terrorists.
	We have already removed Clause 1(3) from the Bill and, as I have indicated, by making further amendments we will also remove Clause 1(7)(a) and Clause 2(9)(b). Amendment No. 79, to which we will come later, also offers further protection for chemistry teachers.

Lord Elton: I am sorry to interrupt the Minister's fairly convincing flow, but how is one expected to show that one has not endorsed something? How do you prove that negative?

Baroness Scotland of Asthal: It can be proved by the words one uses and by the context. The noble Baroness, Lady Carnegy of Lour, referred to the institution at St Andrews where the whole purport of its course is to discuss terrorism in a philosophical way. In that situation, it is perfectly possible for the academic to demonstrate that that was part of the course he was teaching; that it was promoted as such and that its whole purpose was to promote academic discussion.
	It may be simpler if I go through the way in which we put the matter and then, if I have not fully or properly explained our position, we can discuss further changes. I absolutely accept that there is a difficulty because the Committee does not have the final amendments I propose to bring forward. If and when we have them, it will be so much easier for Members of the Committee to be persuaded that the matter is clear.
	I see the noble Lord, Lord Kingsland, rising to his feet. I do not know whether he is going to invite me not to say anything more and for us to rest until Report, but I will give way.

Lord Kingsland: I am most grateful to the Minister. She indicated on Monday that she was going to bring forward amendments to this clause and to some degree foreshadowed their content, but without anything like the specificity that one would expect in the text. This issue has become germane to the debate on this line of amendments today. I wonder whether the Minister would consider it appropriate for this clause, when she has decided what the amendments will be, to be recommitted. Given the importance of the issue, the complexity of the existing clause and the surrounding circumstances, the manner in which debate on Report is conducted would not give your Lordships' House sufficient scope to examine the new material which the Government will be bringing forth.

Baroness Scotland of Asthal: I do not think that that is necessary. We have already had some very detailed debates on the existing provisions and we have heard why the Committee believes that the Bill as it is currently constructed is defective. In the ordinary way, we would have listened to the debate and come forward with amendments in response to it. I will continue to listen to what is said to make sure that the amendments that we bring forward meet concerns. Bearing in mind that we were strongly persuaded by what was said at Second Reading, I thought that this would be an appropriate way to proceed; that is, that I should foreshadow what we intended to do at the earliest possible moment to enable the Committee to have the sort of debate which would enable us to draw the final amendment with the appropriate degree of accuracy. Bearing in mind the time that we have already given to the Bill in Committee and the fullness of debates that we are already having on these provisions, it would not be appropriate to recommit the Bill.

Baroness Williams of Crosby: In that event, and given that considerable restrictions exist at Report stage, will the Minister give us any idea when she is likely to be able to table this most significant group of amendments and whether there will be any opportunity to consult on them before Report?

Baroness Scotland of Asthal: I will certainly table them as soon as I can. As is my usual practice, if we have time between Committee and Report, I will be more than willing to discuss these issues with interested Members of the Committee to make sure that we have a full opportunity to deal with them satisfactorily.
	It would be an advantage if I could now respond to the many questions that I have been asked, because after I have done that, noble Lords will perhaps be less anxious. We will then be able to continue with Committee and decide at the end of this discussion whether further debate is necessary. We are being a little precipitate, if I may respectfully say so. I will of course give way if the noble Lord wishes it.

Lord Kingsland: The Minister may or may not think that I am being helpful in what I am about to say. The purpose of asking for recommitment was not to delay the Bill for purely expedient reasons; it was to give the Minister the chance to discover a solution which was satisfactory to all sides of the Committee. The danger is that if we move to Report stage with the text of new amendments, with all the constraints that that implies, we may well end up with a vote on a matter which will create the kind of confrontation on the Bill which we all wish to avoid.
	Time spent in working one's way through these amendments to find a satisfactory compromise will help the political process enormously, in my submission. It was in that spirit that I made my suggestion. If the Minister were to table amendments a considerable time before Report, if such negotiations that she suggested were able to take place and if there emerged a solution of the sort that I had hoped, it would not be necessary to seek recommitment. However, on behalf of the Opposition, I must say that if a situation arises such that we feel debating these issues on Report would be over-constraining, we shall seek recommitment.

Baroness Scotland of Asthal: I quite understand that that is the position. My position is that I have heard very clearly the views of the Committee, expressed by Members whom we all respect. They speak about the academic richness of our country and about things that are proper and real, and we very much want to respond in a positive way that would alleviate those concerns. Therefore, in putting forward the submissions that I am about to put forward, we believe that we are meeting those concerns. Indeed, in our Amendment No. 79, we believe that we go further than Amendment No. 83, and we do so because we acknowledge the force of the concerns that have been expressed. Therefore, there is absolutely nothing between us.
	On our Benches, we have the very powerful voices of the noble Lord, Lord Eatwell, on libraries and the noble Baroness, Lady Warwick, on universities; the noble Baroness, Lady Williams, speaks with her usual authority on these issues, as has the noble Baroness, Lady Carnegy of Lour, in advancing the cause of the University of St Andrews. So we are all at one about the issues that need addressing so as to ensure that there is the certainty that we seek.
	As I have already said, we already have the indications that I gave on Monday in relation to Clauses 1(7) and 2(9). The concern was about statements or publications being in some circumstances objectionable but in others not so, and that it should therefore be illegal to publish or disseminate them in some circumstances but not in others. The clearest example of when it should not be illegal to use the material would be in purely academic contexts. The changes that I explained on Monday about the defences in Clauses 1(7) and 2(9) should provide sufficient comfort for the academics who are worried about Clauses 1 and 2. I explained the reasons for that at some length so, with the Committee's indulgence, I shall not repeat them in detail now. In summary, the changes that we propose to make mean that it will be a defence for a person to show that he did not endorse a statement, when it was clear in all the circumstances that he did not. In an academic circumstance it would be clear that he did not endorse it, that he did not endorse the publication, or that he did not intend it to be of use to terrorists. That is in Clause 2.
	I am confident that those changes will protect all legitimate academic interests. It will protect institutions such as the Centre for the Study of Terrorism and Political Violence at St Andrews University, as mentioned by the noble Baroness, Lady Carnegy of Lour. It will protect history faculties that touch on Islamic extremism, and debating societies and libraries throughout the United Kingdom. Therefore, I urge noble Lords in whose names Amendments Nos. 21 and 45 have been moved or tabled not to press them.
	I make a similar point about Amendment No. 83. The change that we intend to make to Clause 6 should be entirely acceptable, we hope, to everyone who has expressed concern about the clause. The Government have tabled Amendment No. 79, which will mean that a person will commit an offence under the clause only if he knows that the person to whom he is giving training intends to use it for terrorist purposes. In other words, if he suspects or believes that the person intends to use the training for terrorist purposes, he will not be committing an offence. Of course, if he does suspect or believe that his student intends to use the training for terrorist purposes, as a good citizen he may want to report the matter to the relevant authorities, but he will not be committing an offence if he continues to provide training—only if he knows.
	That means that only those who know that the intention of their pupils is to use the training for terrorist purposes will be caught. We think that is correct. We say that if someone knows that the people they are training are seeking that training for the purpose of terrorism and none the less continues knowingly to train them in order to enable them to do so, of course properly they should be caught. We think this change represents a far better protection than that set out in Amendment No. 83. If an academic provides training knowing that his pupil intends to use it for terrorist purposes, he should be caught by this offence, but not otherwise.

The Lord Bishop of Chester: I wonder whether I could press the Minister on this point by asking for some definition of the word "know". Does it mean beyond reasonable doubt, the balance of probabilities or reasonable suspicion? It would be helpful to know a little bit about what the word "know" means in this context.

Baroness Scotland of Asthal: It means that if he merely suspects or believes that something might be going on, that is not enough. He has to have clear knowledge and clear belief that the training was for terrorist purposes. That is why I say that Amendment No. 79 is an important definition because it does not catch people who are worried, or who suspect, that someone might be using this inappropriately. We think that is a clear distinction.
	If you were giving flying lessons, for instance, and your pupils wanted to learn only how to set off but never how to land, that might make you suspicious as to what they were about, and you might think that was something you should report—but you are not committing a criminal offence if you do not do so, because you merely have a suspicion. It is knowledge that will be caught by this offence, and nothing else. We absolutely understand the anxieties of academics, librarians and others. It is right to say that the great majority of our academics and librarians will never have such knowledge or intent in terms of providing, but those who do—

The Lord Bishop of Chester: I want to press on an associated matter, picking up on a point made earlier by the noble Baroness, Lady Williams: that while a defence may be mounted, the whole process of investigation and police inquiry, even short of a court case, will have quite a marked effect upon academic institutions in this country. If the Minister is going to deal with the noble Baroness's point, could she comment on that now?

Baroness Scotland of Asthal: I was going to deal with this point, and I am happy to do so at this stage. All these offences in terms of prosecution will have to have the assent of the Director of Public Prosecutions. This offence will not be prosecuted lightly, and therefore the highest possible level of scrutiny will be given to these offences. By virtue of the amendments we have made to Clause 1 in terms of intent and subjective recklessness, and of those we will make to Clause 2, the offence has a very high bar indeed. It is our intention that the amendments when put together will mean that academics and librarians, if they are doing their job in a professional and proper way, should not fear any prosecution at all.

Lord Eatwell: On the same point, I wonder whether my noble friend can help me. The British Library has received legal advice that private prosecutions would be possible following a terrorist incident. Is that incorrect?

Baroness Scotland of Asthal: We understand the concern about private prosecutions. Our intention is that only prosecutions that have had the sanction of the Director of Public Prosecutions under this legislation would be possible. We do not propose that private prosecutions using these provisions will be possible within our jurisdiction. So, there will be no private prosecutions. We will look at this very carefully. If on further scrutiny there is any ambiguity about that, I will seek to ensure that there is appropriate amendment in the Bill to put that beyond doubt.

Baroness Carnegy of Lour: I am sorry to disturb the noble Baroness again. However, if she is doing that, could she also ensure that that applies in Scotland, where presumably the prosecutions will be by the Lord Advocate?

Baroness Scotland of Asthal: It is a United Kingdom-wide jurisdiction. At the moment, as the noble Baroness knows, the position is slightly different because prosecutions have to have the assent of the Lord Advocate and the procurator fiscal. So, they would already have scrutiny of these matters. The position is slightly different in England and Wales. Therefore, we are making it clear that these prosecutions would have to have the assent of the Director of Public Prosecutions before they could be pursued. It is not proposed that these offences should be dealt with lightly; they are serious offences. We do not expect to have many of them. But when we do have them, we believe they are likely to be very important. Because of that importance, the scrutiny of the Director of Public Prosecutions is merited.
	I absolutely understand the Committee's anxiety in this regard. However, I was pleased to note that the Royal Society of Chemistry, which I think is the society to which the noble Baroness referred, has welcomed the changes that we have made. In a notice issued on 5 December, its president, Dr Simon Campbell, commented that Amendment No. 79,
	"will help to protect those engaged in legitimate scientific teaching and research and will avoid what would otherwise have been some very undesirable and unintended consequences".
	He went on to note that the Royal Society of Chemistry still had concerns about the Bill. However, that was before I announced the Government's intention to generalise the defences in Clause 1(7) and Clause 2(9). I am confident that the package we have now proposed should remove all concerns that the Bill will have a damaging impact on the academic community.
	I need to be very clear with the Committee that that is our intent. We do not wish librarians and academics in any way to be disadvantaged or to discharge their duties in a significantly different way from what they do now. They do so honourably and to the credit of our country.
	I therefore urge the noble Lords who tabled Amendment No. 83 not to press it. I undertake, as I have indicated, to come back as quickly as we can with the drafts. I hope that when noble Lords have the opportunity to see how they fit together they will be satisfied that the assurances I have given hold good.

Lord Judd: As someone involved in university governance I very much welcome the whole approach that my noble friend has taken to the genuine concerns that exist. I think it would be unwise to pursue the amendments at this stage until we have heard what is being proposed in detail. But there is one other matter which I should like to raise, if I may, that I hope my noble friend will take into account when she comes back to the House with her propositions. She referred several times to the academic community. In that context she mentioned the fine work done by our universities, university teachers and university libraries. But many would argue that very important academic work is being done in further education and in adult education, not least in bodies such as the Workers' Educational Association, and certainly in good sixth forms. I think back to my own sixth-form education, which I value to this day because it provoked me into thinking. As we discuss these matters I see one particular master quoting what a terrorist was advocating and asking, "What is your reaction to that"?
	Therefore, when the Government come back to the House it will be very important to be quite clear what we mean by the academic community, and that as long as the work being done is bona fide academic work in a reputable bona fide educational academic institution, it will be covered by the legislation.

Lord Greaves: The noble Lord, Lord Judd, has just extremely eloquently made one of the two points that I was rising to make, so I will not repeat everything that he has said other than to comment that I have been extremely impressed by the Committee's discussion, which reflected what I call high academia. That is not surprising, but the academic community extends to the grassroots. It extends beyond professional teachers and other professional academics, whether teaching at a high university or in a local community. My noble friend Lady Williams referred to people's professional capacity.
	Informal discussion groups and community groups who hold informal discussions constitute a rich tradition in the part of the country in which I live, and that tradition still survives today. Not everyone who leads those discussions or is involved in them is acting in a professional waged capacity; they are simply leading a discussion. As the noble Lord, Lord Judd, said, it is very important that the academic community is taken to be all-encompassing in that sense. It is important that the Government's amendments, which will be very welcome, are seen to apply to everybody, however high or low they may be in the great richness of academic discussion to which the Minister referred.
	My second point is that there is also a political dimension to this. I refer to what I do if I get a leaflet through my door from what I consider to be a thoroughly obnoxious organisation, which is likely to be a far-Right organisation—perhaps one of the organisations that operates on the far fringe beyond what might be called mainstream Fascist groups such as the BNP, that might well be taken to be promoting or condoning terrorist acts. My reaction is to collect all such leaflets from my neighbours and, if I do not get enough, to copy some myself and take them to the next meeting of my local political party, or perhaps to an organisation of which I am a member, Pendle United Against Fascism. In doing that I disseminate those leaflets but my purpose is a political one—to get people working to counter the stuff that is being put out in the community. This is all to do with intent and motivation. If the Government's amendments meet the point I for one will be very happy. However, I do not want to be put in court and threatened with seven years in gaol for trying to organise anti-Fascist activities and, as part of that, having distributed some Fascist or Nazi leaflets.
	The same applies to local mosques. If Islamic-type terrorist material is being disseminated outside a mosque, at least the mosque committee, and perhaps a wider group, will want to spread it among themselves if they are going to do what the Government are asking them to do and use their influence and authority within the mosque to counter that activity. You cannot counter arguments unless you know what is being put out. It goes beyond academia at a national level; it goes to the local discussion and teaching that the noble Lord, Lord Judd, and I are talking about, and it goes beyond that to political activity. We do not want a situation in which people whose intentions are of the best get caught because of the material that they have in their possession.

Baroness Carnegy of Lour: It did not seem to me that the noble Baroness actually said what was wrong with the approach of the noble Baroness, Lady Williams, which is to make those parts of the Bill not apply to certain people. From the point of view of librarians, if that part of the Bill did not apply to them it would be very much less worrying than the way that the Government are planning to do it. What is wrong with doing it that way round, apart from the fact that the Government have gone forward on the notion of laying the burden of proof on, say, the librarian, and strengthening the defence?

Lord Stoddart of Swindon: I would like to follow up what the noble Lords, Lord Judd and Lord Greaves, said, because they raised an important point. This is not only about libraries and academia; it is about normal discussion between people. For example, we have—or at least we used to have—trade union branches, and in my experience very vigorous political discussion goes on about all sorts of things in trade union branches. We still have local trade councils, and I assure noble Lords that they were very effective and influential. I do not know whether they still are, because I have been in this House now for 22 years, and I have not had the same contact with trade councils and trade union branches that I used to have when I was a Member of the House of Commons. I believe that they still exist; and where they exist they discuss all sorts of matters. They discuss the Arab-Israeli position, for example, and some of them may say and even publish things that in certain circumstances could be construed as supporting terrorism of one sort or another. This is a dangerous Bill in that it constrains free speech right across the board, and that is what worries me.
	I welcome the amendments that have already been put down, and I welcome the amendments that are to come. Unfortunately, we do not know what they are at present. What really worries me is that on an issue of such fundamental importance to our democracy we should have received from the Government and from the Commons a Bill that is so defective that it has to be so amended. I really hope that this will be a lesson to the Government that they have a duty, particularly where our freedoms are at stake, to see that legislation is properly prepared to safeguard the freedoms that we have held for a very long time. The House of Commons should be given adequate time and facilities to consider what the Government have put down, so that the properly elected House also has the opportunity to examine such legislation. It ought not to come to this House in a form where the Minister has to say, "We have not properly considered this Bill, but we will amend it bearing in mind what has been said". Frankly, that is not good enough.
	I listened to the Minister with great intent, and she is an extremely able Minister. She should not have been landed in this soup. She should have had a Bill which had been properly thought out, prepared, considered, and considered again before it went to the House of Commons, and was then brought to this House in a proper form so that we did not have to spend so much time amending a bad Bill.

The Earl of Onslow: I apologise for arriving slightly late, but I am moved to defend the noble Baroness. She comes forward with amendments, saying that she has listened to the House. I am sure she has. I think that she has not gone far enough. But for her noble friend on the Back Benches to put the boot in and mob her up—

Lord Stoddart of Swindon: I used to be the noble Baroness's noble friend, and I am still a personal friend, but I am no longer her political friend.

The Earl of Onslow: In that case, her noble acquaintance has put the boot in from the back when she has done nothing apart from not going far enough. We spend our whole time asking the Government to listen, so when they do, let us give them credit. I say this through gritted teeth, but I mean it.

Lord Thomas of Gresford: I am minded to follow that which the noble Lord, Lord Stoddart, and my noble friend Lord Greaves said a moment ago. There are local historical societies all over Wales. I know that the noble Lord, Lord Judd, has not studied Welsh history, but he may nevertheless have heard of Owain Glyndwr, described by Shakespeare as Owen Glendower. He could have been described as a terrorist; he burnt enough English castles in his day. His exploits and his governance of Wales over a period of 12 years, his setting up of the Welsh Parliament at Machynlleth are revered—one might almost say glorified—in Wales. When, some years ago, people started burning English homes in Wales, what did they call themselves? Meibion Glyndwr—the Sons of Glendower. That shows how the teaching of history may cause people to emulate what has happened in the past.
	I can give another example from Ireland. I was once engaged in representing a person charged with setting off a series of bomb attacks in this country, one of them in a hotel close to Buckingham Palace. To try to understand his point of view, I told him I had been reading the speeches of Daniel O'Connell—the great Irishman, as he was known in his day in the 1830s—whose street, O'Connell Street, is the main thoroughfare in Dublin. His response was, "That traitor! Read the speech of Robert Emmet on the gallows in 1797". Suppose that an academic talks about the Irish troubles of 1797 and Robert Emmet going to the gallows. That had an effect because what happened then fuelled the IRA.
	I agree with my noble friend Lord Greaves that we should not simply be talking about high flown academics; we should be developing a defence which can apply to anywhere where discussions of history or wider political happenings take place.

Lord Elton: The noble Baroness invited me to defer my rather narrow point until a later time, which I think we have reached. I do not want to wait until Report because if we do, it will no doubt be too narrow to discuss. The point is very germane to our discussions, in particular to Amendment No. 45.
	Let us say that I am the librarian of a university or college with a department of chemistry. A student wishes to study the nature of unstable compounds—another name for explosives—and I have on the shelves a book which I have ascertained is a reputable manual on the subject. The student goes away, starts tinkering with bombs and is arrested. He then says that he was led into this path by my endorsement; and however invalid that may be, it lies with me, if the finger of suspicion is pointed at me by the police, to prove that I did not give my endorsement. Therefore the definition of "statement" in this case would not apply to Clause 2; this is just normal language. It is a case of the student's word against mine and I am asked to prove a negative, which I thought one did not ask people to do in a court of law.

Lord Judd: The noble Lord, Lord Thomas of Gresford, is right to draw attention to the wider virtues put forward by the noble Lord, Lord Greaves, and my noble friend Lord Stoddart. The noble Lord, Lord Thomas, was not misguided, but I ask him to accept that the Government will genuinely have a great challenge in defining exactly in what context this kind of activity is possible. One would be naive not to accept that a number of so-called educational institutions claim to have academic status, but that their purpose is far removed from the spirit of education and academic activity that we are discussing.

Lord Thomas of Gresford: Does the noble Lord agree that the opportunities for discussion should be as wide as possible and that the Bill is so vaguely drafted, particularly in Clause 1, that it may catch all sorts of activities that the Government do not intend to?

Lord Judd: I think that when we deal with issues that are fundamental to human freedom, clarity and precision is important. I hope our deliberations in Committee can help the Government to ensure that that precision is present, if it is not sufficiently present at the moment. In the end we will have to find some kind of definition which refers to bona fide educational institutions. I regard the kind of institutions to which the noble Lord referred as bona fide educational institutions, but am very worried about institutions that exist, not least in London, that claim the cloak of academic educational work but are in reality propaganda organisations.

Baroness Williams of Crosby: I wish to add a further thought to the discussion between my noble friend Lord Thomas of Gresford, the noble Lord, Lord Judd, and, indeed, my noble friend Lord Greaves. As someone who taught for many years in the Workers' Educational Association and the National Council of Labour Colleges, I sympathise deeply with the arguments that have been made. It is difficult to see how the issue could be caught by Amendment No. 21, which addresses itself to academic practice and might be narrowly interpreted. The Minister needs to consider later whether the DPP would wish to be involved in this area because it is huge. I am not suggesting that the DPP should not be involved in other areas, but perhaps there should be some recommendation relating to the public interest. There is great public interest in freedom of speech and freedom of expression and the Minister may, when finalising the amendment, give some thought to whether something of that kind could deal with this area of formal, but extremely important, educational instruction.

Lord Morris of Aberavon: I wish to make a general point before we leave this clause. I am glad that the noble Lord, Lord Thomas of Gresford, raised the place of Owain Glyndwr in history. Indeed, I would regard him as a patriot. Others might regard him as a terrorist—after all, the castles in north Wales were erected as English police stations to keep the Welsh down, and there was a great deal of merit in dealing with those intrusions into our society. But a serious point has been made regarding Meibion Glyndwr—the Sons of Glendower—who, unhappily and very regrettably, burned cottages as recently as in the past 15 years. Even the great and revered poet in the English language, Reverend RS Thomas, writing in English as recently as 1991 said words that might be interpreted as being sympathetic to what the Sons of Glendower were doing, and the remarks of the reverend cleric might be regarded as offensive to certain sections.
	My point is that in the last debate, and indeed earlier debates, we had difficulties with the poor drafting of this clause. I made it clear at Second Reading—it was not possible to go into any detail—that as the clause stood I was not with the Government. Unless they come back with further proposals later—as they will be doing on the subject of recklessness—I shall find it very difficult to support the Government on that.
	At Second Reading I indicated that I had tried to draft specimen directions to a jury and that I had not found it easy. If the Minister could persuade her learned colleagues to put in the Library a series of draft directions to juries—what juries are supposed to find—that might ease our task in discussing this clause. It is a modest request and it would help me in particular.

Lord Goodhart: As I briefly introduced this debate, I think that it falls to me to wind up. The contribution of the noble Lord, Lord Stoddart, raised an interesting idea in my mind—that if someone wrote an article in a magazine or newspaper praising the conduct of Mr Arthur Scargill and the National Union of Mineworkers at Saltley during the 1973 miners' strike and said that it was a model that trade unions should follow in future, arguably that could amount to the encouragement of terrorism. That conduct involved serious violence. Much as I disapprove of what happened at Saltley, I certainly would not wish it to be said to be a terrorist operation; nor would I wish to see the National Union of Mineworkers become a proscribed organisation.
	This group of amendments raises issues that have caused enormous concern not only to our universities and libraries but also, as my noble friend Lord Greaves and others have said, to much wider circles. In this country we pride ourselves, rightly, on our universities and our standards of academic freedom, and we are alarmed by any threat to them. The government amendments—I have pleasure in saying this—have to a considerable extent met our concerns on Clause 1 and, in effect, have entirely met our concerns in relation to Clause 6, but they have not done so in relation to Clause 2. In later groups we will come to specific proposals for changes which need to be made to Clause 2.
	I recognise that the wording of these amendments is not in a form appropriate for inclusion in the Bill, but they are being brought forward by my noble friend Lady Williams—a former Secretary of State for Education who has had very close involvement with universities on both sides of the Atlantic—as probing amendments. In that way, they have been successful because they have led to a serious and valuable debate.
	I hope that the Minister will bring forward amendments to deal with our concerns on Clause 2, but, until we see those amendments, for the purposes of this debate we have to ignore them. We cannot simply take for granted something whose terms we do not know. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 1, as amended, agreed to.
	Clause 2 [Dissemination of terrorist publications]:

Lord Goodhart: had given notice of his intention to move Amendment No. 22:
	Page 2, line 48, at beginning insert "Unless he is a person to whom section 3(11) applies,"

Lord Goodhart: I do not intend to move this amendment at this time, because it is a paving amendment for a larger group of amendments concerned with Clause 3 and would be better discussed at that point.

[Amendment No. 22 not moved.]

Lord Cameron of Lochbroom: moved Amendment No. 23:
	Page 2, line 48, at end insert "knowingly"

Lord Cameron of Lochbroom: Amendments are coming up that deal with the point with which this amendment is concerned, the concept of guilty intent, which should be brought into this clause. Since what is proposed later on is far more elegant in securing what the bludgeon of this amendment was designed to bring before the Committee I did not intend to move it.
	Amendment No. 40 is in this group and adds "or" to Clause 2(8)(a). The matter was dealt with by the Minister when speaking to Amendment No. 20. I refer to col. 501 of Hansard of 5 December, when she explained that all three limbs of the subsection have to be satisfied to establish the defence. I am prepared to accept that and, therefore, when we come to Amendment No. 40, I shall not move it. I beg to move.

Lord Boston of Faversham: As these amendments have been spoken to, I must take it that this amendment is moved, in case other noble Lords wish to speak. If the noble Lord now wishes to seek leave to withdraw, he is able to do so.

Lord Cameron of Lochbroom: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 24:
	Page 3, line 8, leave out "a view" and insert "intent"

Lord Kingsland: Amendment No. 24 is the first amendment in a line of amendments that cover two issues. The first issue is intent in relation to the offences described in Clause 2 and the second is what subsection 3 adds to Clause 2 that is not already in Clause 1(1). Amendment No. 25A is a probing amendment to tease that out. I apologise to the Committee for the fact that our original amendment, Amendment No. 25, has been adjusted in Amendment No. 25A, which merely substitutes "terrorist publication" for "statement" in what would be Clause 2(1A)(a).
	I can deal briefly with the first amendment, which refers to Clause 2(1)(f). The subsection reads as follows:
	"A person commits an offence if he",
	and then there are five examples of how the offence can be committed. The sixth example, in paragraph (f), states:
	"has such a publication in his possession with a view to its becoming the subject of conduct falling within any of the paragraphs (a) to (e)".
	It is important to make it absolutely clear here that the reason an accused person has a publication in his possession is because he wishes subsequently to distribute it. Plainly, a number of people will have publications in their possession which have been distributed to them. In our view, therefore, "a view" should be substituted by "intend", to make it absolutely clear that the reason somebody has such a terrorist publication in their possession is because they wish subsequently to disseminate it. That is a purely drafting point.
	Amendment No. 25A, however, raises an important point of substance. Unlike Clause 1, there is no intent provision in Clause 2—that is, no intent provision with respect to the act of dissemination. Amendment No. 25A seeks to insert such an intent requirement. Indeed, it goes further than intent; it mimics Clause 1(1) by requiring that the act of disseminating a terrorist publication has either to be intended or to be committed recklessly—recklessly in the subjective sense of the word.
	It is important that the Bill reflects that the intention to disseminate involves two separate acts in order to be an offence under the Bill. First, there has to be an intention to perform the physical act of dissemination; and, secondly, there has to be an intention that the publication that is disseminated is a terrorist publication. Both intents have to be proved by the prosecution according to the usual standard, although they are not expressed separately but as a single intent—that is, the intent to disseminate a terrorist publication or to disseminate it recklessly. That is all I need to say about Amendment No. 25A. If the Committee accepts my Amendment No. 25A, the defences in Clause 2(8) and (9) become otiose.
	I now turn to the second issue these amendments raise, that of Clause 2(3). Amendment No. 27 simply seeks to eradicate the subsection altogether. But it is at this stage a probing amendment, because I have not yet heard the noble Baroness's reaction. Subsection (3) seeks to clarify what "matter" constitutes. What does "matter" mean and does the clause add anything to what is already in Clause 1(1)?
	"Matter" is defined in Clause 2(2), and it constitutes two ingredients—first, in Clause 2(2)(a),
	"a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism";
	and, secondly, in Clause 2(2)(b),
	"information of assistance in the commission or preparation of such acts".
	I have no difficulty whatever in accepting that "matter" is necessary to incorporate what constitutes Clause 2(2)(b), but I am in some difficulty in understanding why the expression is necessary when we are dealing with Clause 2(2)(a).
	What is covered by "matter" in subsection (2)(a) that is not covered by subsection (5), which elaborates subsection (2)(b), other than a statement? What can matter be in subsection (2)(a) other than a statement? If I am right in reaching that conclusion, why do we need subsection (3) at all? All we need is for subsection (2)(a) to read, "a statement to which subsection (1) of Clause 1 applies". In sum, I submit that "matter" in Clause 2 can only mean either a statement, in which case it is covered by Clause 1(1) and no additional definition is needed, or constitute what is described in subsection (2) (b) as,
	"information of assistance in the commission or preparation of such acts".
	In tabling this probing amendment, I am not seeking to reduce the obligations on any potential disseminator of information. Nor am I seeking to reduce in any way the powers of the Government concerning dissemination. I am seeking to see whether a singularly opaque subsection—subsection (3)—can be expunged altogether from the Bill to achieve greater certainty, something for which we are all desperately seeking in this Committee. I beg to move.

Baroness Williams of Crosby: In supporting the argument of the noble Lord, Lord Kingsland, I adduce two other points that it is important for the Committee to have before it. The first of those is the extremely interesting report of the Joint Committee on Human Rights. Without delaying the Committee, I shall briefly remind it of the Committee's conclusions. Referring to Clause 2 and dissemination, it stated:
	"In our view the proposed new offence suffers from some of the same compatibility problems as those identified in relation to the proposed encouragement offence"—
	in Clause 1—
	"including the lack of connection to incitement to violence, and the absence of any requirement that such incitement be either intended, carried out with reckless indifference, or likely".
	I confess that I remain completely puzzled by the Government's position on the issue. The Minister, Mr Rammell, in trying to quieten the fears of academics when speaking in the other place, specifically said that intent meant that those fears were misplaced. He cited the Government's amendment to Clause 1.
	I do not understand why the Government feel unable to add intent to Clause 2, rather than the heavily complicated system of defence that they have adduced, because it would be so much simpler to add intent to the position of people affected by Clause 2. One would then be able to show whether any intent could be demonstrated. If not, the matter would not be prosecuted. There would be no need to bring in the Director of Public Prosecutions—or anyone else, for that matter. The reassurance given to the large groups of whom we are speaking would be immediate, widely understood and transparent, rather than opaque.
	I do not understand that because when the Government moved a very similar amendment to Clause 1, as the noble Lord, Lord Kingsland, pointed out, they immediately won over a substantial part of opinion to the Bill. It was felt that that had dramatically narrowed down the area of possible offence and that that would be very appropriate. We now find that in Clause 2, the Government are not so far willing to support that.
	Among other things, that leaves the anomaly that has been pointed out by several university briefings and others: that you might be perfectly covered by making a statement that could in some circumstances be interpreted as encouraging terrorism because you had no intent to do so; but if you disseminate that same speech by handing it around to your class or to a journal to publish, you would immediately become liable for an offence under Clause 2.
	That is a curious disjunction; it does not make a great deal of sense. In the light of the fact that there is also a question about whether without intent Clause 2 would satisfy the requirements of the Council of Europe covenant, it is exceedingly puzzling, to me at least, that the Government, given their willingness to listen to this Committee and to another place, have not reconsidered whether intent should be added to this clause.

Lord Goodhart: My name is attached to Amendments Nos. 30, 36 and 39, to which I wish to speak. They are not probing in nature; they are serious amendments which, if necessary, we are prepared to pursue.

Lord Kingsland: The fact that one tables a probing amendment does not mean that it is not serious.

Lord Goodhart: I am grateful to the noble Lord, Lord Kingsland, for that. Probing amendments may well be serious but the implication is that they will not be pursued as such. Unless satisfactory improvements come out through further government amendments to Clause 2, we will pursue our amendments.
	The amendments extend the requirement of intention to offences under Clause 2. Amendment No. 25A requires either intention or subjective recklessness as a basis. We prefer intention alone, for reasons given in the debate on Amendment No. 6 last Monday, which I shall not repeat. It is essential that the same degree of intent be required for Clause 2 as is required for Clause 1. My noble friend Lady Williams has pointed out one obvious anomaly: under Clause 1, intent is required for the initial publication of a statement, but no such intent is required for the subsequent dissemination of it.
	The definition of a terrorist publication in Clause 2 is very wide, partly because it depends on the context. It is especially wide in relation to the publication of a document that could be of assistance in the commission of an act of terrorism. As pointed out, that definition could include a map of the London Underground. That makes it even more important to ensure that only people who intend to encourage or assist terrorism are caught by Clause 2. But the Government in their drafting of Clause 2 have come up with, and continue to defend, an extraordinary proposal: the criminal liability of the defendant who disseminates the publication depends not on what his intention was in doing that but on the reaction to the publication of hypothetical people of whose existence and purpose the defendant is necessarily unaware. That stands on its head the ancient principle of mens rea.
	Leaving aside the special defences under subsections (8) and (9), that means that the basic definition of crime does not require the defendant to know anything about the contents of the publication or about who may be interested in it. The Bill includes the special defences but they are totally inadequate. Subsection (8) requires the defendant to prove cumulatively, under paragraph (a), that he does not know what is in the publication; under paragraph (b), that he has no reasonable grounds for suspecting it to be a terrorist publication, a question that depends on its context, part of which may not have been known to the defendant; and, under paragraph (c), that the contents of the publication do not have his endorsement, a wholly irrelevant factor if he does not know what is in the publication to begin with. I emphasise that all those matters must be proved by the defendant. Similar problems arise in relation to subsection (9). I will not go into detail about them because subsection (8) presents those problems most obviously and most seriously.
	In the debate on the first group, Members on all sides of the Committee spoke about the problems that Clause 2 presents to teaching, universities, libraries and a much wider group. I am satisfied that as Clause 2 stands, it presents a threat to freedom of expression and to academic freedom. It goes far beyond what is needed in a democratic society—to refer to Article 10 of the European Convention on Human Rights, which deals with freedom of expression. It is therefore essential to put into Clause 2 the same test for intention that was agreed, largely, for Clause 1. Amendments Nos. 30 to 36 effectively do that. I recognise that they do not include recklessness, but that is not central to this.
	Amendment No. 39 removes the special defences in subsections (8) and (9) on the grounds that, as the noble Lord, Lord Kingsland, said, they are otiose if there is an intention as part of the mens rea. The Joint Committee on Human Rights has pointed out, first, that the offence should involve incitement to violence; secondly, that the offence must require an intention or reckless indifference; and, thirdly, that there must be a public interest offence. None of those conditions pointed out by the Joint Committee is satisfied.
	Clause 2 is a threat to the principle of freedom of expression, not so much because we expect many prosecutions to occur under it, but because of its obvious chilling effect and the self-censorship to which it will lead. I believe that that is as important as the length of detention without charge, which has attracted perhaps a great deal more publicity. Clause 2 requires major surgery before it is in an acceptable form. I am afraid that there is a great deal of work to be done. Unless the Government answer all the points that I have raised, we will have to come back to this in a very serious way.

Lord Lloyd of Berwick: I support Amendment No. 30, which has my name attached to it. I very much agree with the noble Baroness, Lady Williams. Once intent was introduced to Clause 1 as a necessary ingredient in that offence, it is wholly illogical that it should not be introduced as a necessary ingredient in the Clause 2 offence. There still seems to be some belief, on which I touched on Monday, that intent is difficult to prove. It is not. It is proved every day in criminal courts. Judges are used to summing up how juries should approach questions of intent. There is no difficulty in it. We must introduce the concept of intent as a necessary ingredient in the Clause 2 offence. I lend all the support that I can to this amendment.

Lord Eatwell: As the noble Baroness has acknowledged, she has placed the Committee at a considerable disadvantage. We are attempting to discuss a clause, the structure of which we do not yet know, as the noble Baroness has said that she will be amending it. I have listened carefully to what she has had to say. Perhaps I may quote exactly what she said on this issue. There would be a defence for an individual if he was able to show that he "did not endorse" and "did not intend". Was my noble friend indicating that she is going to incorporate intent into this clause? If I heard her correctly, she said that if someone could show that he did not intend an action, he would have an adequate defence in respect of the mischief expressed in Clause 2(1) and (2).
	I am not a lawyer so perhaps the issue that I do not understand is that of the burden of proof. Is my noble friend saying that the notion of intent will be a defence and that the defendant would have to prove that he did not intend, or, when she says that someone "did not endorse" and "did not intend", that it would be the task of the prosecution to demonstrate that the individual did have such an intent?
	On Monday, I pointed out the anomaly that intent already exists in Clause 2(9)(d) but does not appear in Clause 2(9)(b), on which we have been asked to focus our attention, but I am still puzzled, when she has used the words "did not intend" and has drawn our attention to the notion of intent in subsection (9)(d), that she appears to resist the concept of intent. Maybe we have all misunderstood the amendments she intends to bring forward and she does intend to introduce intent.

Lord Greaves: I decided to pay closer attention to the Bill than I have done so far, particularly to Clause 2, when I inadvertently sat in on the discussions held on Monday afternoon and heard what was being said about librarians and booksellers. I should declare an interest as a rather part-time book dealer in mainly political material. When I go home this weekend, I had better look through my stock to see whether anything might fall foul of the Bill. I believe that there is a serious problem here for bookshops and booksellers unless we get it right. To that end, I was very interested in what the noble Lord, Lord Ahmed, had to say on the subject on Monday.
	Like other noble Lords, I am encouraged by what the Minister has said about her proposals to make changes to the Bill and I have read carefully the proceedings for Monday in Hansard. I do not want to repeat the fundamental point about the need for book dealers and booksellers to be offered reasonable protection from inadvertently being caught by this legislation. However, I shall make a few points that the Government may want to look at in the light of their new proposals to be brought forward on Report. These points indicate what I shall be looking for in deciding whether their proposals meet what I consider to be reasonable.
	A lot of people who buy and sell books and other printed material are not the big booksellers. The bookselling chains are the main players in the market and I expect that they have a pretty good idea of what they are selling. They employ people to read their books and so forth. Local bookshops operate ordering services, usually very efficient ones. I can ring the bookshop in Colne, give the title I want and by the next morning, the shop will have it for me. That is a brilliant service, but I do not expect the staff to know what is in the book I am buying. Therefore the whole question of intent and not being implicated if you do not actually support what you are selling is very important.
	For the second-hand book trade, in which I am involved, it is even more important because you get large quantities of material; you get cartons and boxes full of stuff. In many cases, a second-hand book shop will put such material in a storeroom and it might be there for several years before it is sorted out, put on shelves, thrown away, given to Oxfam or whatever. That is the way in which the second-hand book trade works. It is not a high-powered organisation. Very often it is people operating out of their own attics or small shops, and to expect them to know and understand exactly what they are selling is not reasonable. So there is the question of stock but, in many cases, you cannot define it by the customers you are going to get because you have no idea who they will be for this material in the future. You just hope that one day you might find some.
	The second point I want to make relates to the question of customers. It is impossible to know all the people you are selling things to. From time to time I sell some fairly nasty stuff. Some of it is from the far Left, some of it is from the far Right—it is a small proportion of what I sell—and I have quite a lot of Fascist material. I go out of my way to be careful about who I am selling it to. For example, the last time I sold a copy of Mein Kampf it was to a prominent Jewish member of the Liberal Democrats. I was fairly sure he would not be corrupted by what he would read.
	It is impossible to know all your customers. Even with people you have known for several years, who may specialise in collecting this material, you do not know what, underneath it all, their motivation might be. You try to filter out people you have suspicions about but it is very important that booksellers in this position should not have to vouch for the bona fides of all their customers and the effect such material might have on them.
	My third point concerns the definition of "booksellers". On Monday, the Minister said:
	"it will be a defence for a person charged with the offence to show that the publication did not express his views and that it was clear it did not",
	and,
	"that the person did not provide the material with the intention of it being of use to terrorists".
	That sounds very reassuring. I have listened to some of the legal arguments on Monday and today but I do not understand them all. There are some very eminent lawyers in the Committee and I shall have to leave those arguments to them.
	But when the Minister went on to say,
	"There can be no question but that that defence should be available to all legitimate librarians, academics and booksellers",
	I began to wonder what the word "legitimate" means in this sense. All sorts of people operate in the second-hand book trade—some on a very small scale, some on a medium scale and some on a big scale—so how do you become a "legitimate" book dealer? Certainly many people who deal nowadays—especially with eBay and so on—are not registered or members of associations.
	The Minister continued—this is what worries me most—that,
	"The defence would be restricted to them"—
	that is, librarians, academics and booksellers—
	"It would not be extended to others seeking to flout the law and encourage or facilitate terrorism".—[Official Report, 5/12/05; col. 465.]
	That is fine—I have no wish to extend it to such people—but what about all the people in between? Quite a lot of people do not come under the categories of academics, librarians and booksellers.
	A great deal of material consists of pamphlets, leaflets and posters—material that people in the trade describe as "ephemera"—which is bought and sold by many people. Some are booksellers and some trade in such material specifically and I am concerned that the defence may be restricted only to booksellers. Perhaps the Minister will look at that point.
	As I have said, because of the way in which material is bought—in job lots, through house clearances and so on—you have no idea what you are buying. Substantial amounts of material are bought at auction. You will go there, you will see three or four boxes full of stuff, containing two or three things that you want, and you will bid for that material. But goodness knows what is underneath it all. You might end up, quite inadvertently, as the owner of some pretty nasty stuff.
	All these matters need to be taken into consideration if the concerns that are beginning to be felt by booksellers, and by second-hand book dealers in particular, are to be alleviated. I look forward to studying carefully the wording of the Minister's amendments on Report and to an assurance that these people, who are all engaging in perfectly legitimate trade, will not be inadvertently caught by a Bill which is nothing to do with them whatever.

Baroness Warwick of Undercliffe: I add my support to Amendments Nos. 30 and 36. Many of the concerns expressed by the academic and library communities, and advanced by noble Lords on all sides of the Committee, have been addressed by the Government's amendments. We understand that further amendments will offer even greater reassurance. The Minister has gone out of her way today to reinforce that degree of reassurance.
	However, from what I understand about what the Government intend in relation to Clause 2—unless the interpretation of my noble friend Lord Eatwell is correct—there remains the issue on which we clearly appear to continue to disagree. The Government have introduced the notion of intent into Clause 1, so that a person must have the intention of encouraging terrorism to fall foul of the offence of publishing a statement glorifying terrorism or must be reckless of the consequences of his actions. That is enormously welcome.
	However, in the spirit of what the Minister said about listening to all our concerns, I need to set out my concerns about Clause 2. As has already been said, the protection offered in Clause 1 is not extended to those who disseminate publications by selling, giving, lending or making available for loan material. The Minister has said that the intention defence in Clause 2 (9) will be extended to all categories of person, and not just to those who provide electronic services, but as other noble Lords have pointed out, that intention defence applies only to material that could be useful to terrorists, and not to statements encouraging terrorism. This creates the interesting anomaly to which other speakers have referred. A person might publish a statement glorifying terrorism—let us say, as part of a study illustrating propagandist techniques relating to the war on terror—having no intention that that statement should be understood as an encouragement to terrorists. A librarian who makes that study available for loan might be prosecuted, because his intention would be no defence.
	A further problem is the fact that the burden of proof will rest with the defence, whereas, as I understand it, the proving of intention in Clause 1 would be the task of the prosecution. The library community has pointed out that the drafting of the clause makes it very difficult to see how a librarian would know which publications he should not lend. The Bill makes it clear that the material must be,
	"wholly or mainly for the purpose of being . . . useful",
	to a terrorist. But what does that mean? I understand that an AZ London would not be included on those grounds, but I referred earlier to The Anarchist's Cookbook. Would that be included? What about historical treatises, which were at the time when they were written intended to fuel and encourage acts of terrorism? Several noble Lords have referred to them. They might conceivably incentivise or be of assistance to violent political activists who apply tried and tested methods to new circumstances. How might a librarian be able to judge whether material fell into the category of,
	"wholly or mainly for terrorist purposes",
	when its original purpose was wholly or mainly terrorist but when it was included in the collection because of its historical or academic interest?
	The Government have said that their intention is simply to catch extremist literature, but I am not sure that that is a definition with which we can be satisfied. There are sound reasons for arguing that our libraries should be able to collect and make available for loan extremist literature, if only to further the study of the motivation of such groups. But there is a difference between what might be defined as extremist and what might encourage or assist the commission of terrorist acts. We should not be banning the former, while I see the argument for very careful handling of the latter.
	I do not believe that the Director of Public Prosecutions will spend a lot of time prosecuting librarians. My fear is, rather, one to which we referred in a previous debate—that librarians will restrict the material that they make available for loan because of their fear of prosecution, which would be detrimental not only to our great libraries and our academic community but to the nation as a whole. Amendments Nos. 30 and 36 would achieve what the Government seek to do while removing the potential unintended consequences. While introducing "intent" into Clause 2, in parallel with Clause 1, the person would commit an offence only if they made material available for loan with the intention of assisting a terrorist. I believe that the library community would be content with that change, as it would address its concerns about the shift in the burden of proof in Clause 2(8). I hope that the Minister will give a favourable response to these concerns.

Baroness Scotland of Asthal: I thank all noble Lords who have spoken. I have listened carefully to the concerns that have been expressed, especially in relation to the issues arising out of the defences contained in Clause 2(9) in particular and the relationship that has to Clause 1. We covered to a large extent similar issues when debating other amendments earlier today, so I shall try to be brief.
	I signalled clearly the major changes that we have either accepted or proposed to make to the offences in Clauses 1 and 2. I shall not repeat those, and I thank Members of the Committee who have expressed gratitude for the changes that the Government intend to make. On the specific issue before us now, the offence in Clause 2 does not involve intent and, as I explained, that is deliberately so. The Government want to give law enforcement agencies the tools they need to tackle a particular mischief—namely, the dissemination of publications in context, which mean that they will either encourage terrorism or be of use to terrorists in practical ways. The Committee will not need reminding of the statements made during debate of the effect of disseminating such material, not least the effect of disseminating the al-Qaeda materials—manuals and matters of that sort—which have enabled and encouraged those who wished to commit acts of terror to do so.
	We originally drafted the offence to focus on preventing that mischief. Together with the related power in Clause 27, the measure provided the law enforcement agencies with a tool to do that. We considered the safeguards in relation to Clause 2, and our initial view was that they were sufficient and that terrorist publications had to be defined by reference to their context. There was a defence specifically for libraries in Clause 2(8), and prosecutions requiring the consent of the DPP. As I have said, we listened carefully and looked at the further defence provided in Clause 9, which originally had a very limited purview. We thought it right, having listened carefully to the Committee's concerns, to extend those defences generally to everyone. I shall just deal with the question of what "to everyone" means.
	During the debate that we had earlier, I concentrated particularly on the universities, booksellers and others about which noble Lords had spoken, but I made it clear that the provisions were to cover academics generally and those who teach and purvey information for philosophical and other debate. It is absolutely clear from those discussions, in response to the concerns of the noble Lord, Lord Greaves, about his collection of materials, which he wished to disseminate to those who wished to fight fascism and terrorism, that they would not be caught by the provisions. Indeed, no matter how offensive we find the far-right statements of the BNP and others, as far as we are aware they still do not fall within the "terrorist" category to which these provisions primarily relate, although one has to look carefully at whether some of their publications do so. From the description given by the noble Lord, Lord Greaves, however, it was clear that he was not going to discuss those issues for the purposes of generating or encouraging acts of terrorism, but quite the reverse. I think, therefore, that he can rest easy in his bed.
	Because of the concerns expressed in this House and elsewhere, we are proposing to expand the defence in Clause 2(9) so that it will apply to everyone. We are satisfied that this will still leave the offence in a workable form, but will also give those concerned about libraries, for example, the comfort they require. I need to emphasise, however, that there is still a mischief we have identified that needs to be addressed. I will explain why we are content with the new drafting we propose, but would rather not change the offence in the way suggested by these amendments.
	We suggest that the mischief of disseminating terrorist publications has two elements: the act of disseminating the publications, which we want to prevent and discourage, and the question of culpability on the part of the person doing the disseminating. We all understand that some people who disseminate publications that may encourage terrorism or be of use to terrorists should be regarded as culpable, but that others—for example, those whose jobs require them to disseminate such publications—should not be so regarded. That is a clear line that, I think, we all agree should be drawn.
	We are content that the current drafting, together with the power in Clause 27, allows us to target the act of disseminating terrorist publications, and satisfied that it allows the offence to capture those who are really culpable. Most importantly, we are also satisfied that it would not capture those who are not culpable, in the sense that they are not trying to do something we would all regard as wrong. Such people would avoid suffering under the offence itself, because they would avail themselves of the defence under Clause 2(9). Thus the offence, together with Clause 27, is still part of a package that can successfully prevent the unacceptable dissemination of terrorist publications, but will not capture those who should not be properly caught.
	My noble friend Lady Warwick of Undercliffe explained the concerns that have been expressed in connection with the interrelationship between paragraphs (b), (c) and (d) of Clause 2(9). I accept, as my noble friend Lord Eatwell said, that it is more difficult for Members of the Committee to consider the amendments while not having all the provisions before them. I will therefore do what I can to ensure that the position is clear.
	I remind the House that paragraphs (b) and (c) are to be read together. The reason for that is that paragraph (b) provides that,
	"the publication to which the conduct related, so far as it contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(a), neither expressed his views nor had his endorsement".
	The reason the "and" should then be included to refer to subsection (c) is that it provides that:
	"it was clear in all the circumstances that the publication, so far as it contained such matter, did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement".
	That covers the situation. I will take librarians as an example.

Lord Goodhart: Subsection (9), like provisions elsewhere in the Bill, refers to the "views" of a person. In what circumstances is it permissible to take into account somebody's opinions on something unless they are actually expressed?

Baroness Scotland of Asthal: That is why I say that paragraph (c) helps us. Let us take a concrete example involving someone who is a librarian in the British Library. Part of his duty is to collate material of all different types and then, on proper inquiry, to give it to those who apply. That is a clear professional duty. If one looks at the publication and the context in which it was given, it is clear that the librarian in those circumstances does not endorse, whether directly or indirectly, the content in the publication but, in the circumstances in which he is providing the material, is simply discharging a duty. So, contextually, under Clause 2(9)(b) and (c), the librarian could say, "I did not endorse it. I was simply discharging my professional duty and providing a copy, as is my duty, to the person who made proper inquiry".

Lord Goodhart: I am sorry to interfere again. Under subsection (9)(b) and (c), he has to prove that the publication,
	"neither expressed his views nor had his endorsement".
	It could be said that someone who was acting in accordance with his profession or duties did not endorse it, but nevertheless it might represent his views. Is that something that would prevent him taking advantage of this defence? It looks like it. But it would be very strange indeed if it did.

Baroness Scotland of Asthal: I am seeking to demonstrate how these two issues would operate together. The noble Lord presses the point in one way, but the noble Baroness, Lady Williams, says, "It is all part of a professional duty. You have to look at the circumstances". These are circumstances of fact. I am saying very clearly that this would provide for librarians and others a perfectly proper defence of which they could avail themselves without difficulty. If we struck out "and" and replaced it with "or", one would be covered by either the first two provisions or by Clause 2(9)(d). The intent to which I referred is the one set out in paragraph (d). It states that,
	"the conduct in relation to that publication, so far as it contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(b), was not intended by him to provide or make available assistance to any person in the commission or preparation of acts of terrorism".
	So when I spoke of intent, I spoke of it in terms of Clause 2(9)(d).

Lord Lloyd of Berwick: I am not happy with this question being dealt with as part of a defence. I think that this is possibly the point which the noble Lord, Lord Eatwell, was worried about. Why is it not possible to catch those whom the Minister refers to as culpable by inserting in the substantive part of the clause, and not as part of the defence, the mental element of intention? That would enable you to catch those who are culpable and would let off those who are not. Why does it have to be done by way of a defence?

Baroness Scotland of Asthal: It is because of the way in which these issues have arisen. Having been intimately involved in reading the documents produced by the various committees of this House and the information we have from the reports of the noble Lord, Lord Carlile of Berriew, the noble and learned Lord is all too familiar with the fact that a lot of material is being disseminated and that a lot of it is terrorist material. A lot of that material has the ability to encourage others to commit and to help others to commit acts of terror. That is a mischief to which we have to address ourselves.
	Once that material has been disseminated and those who are responsible on our behalf for dealing with this matter in the criminal justice system have those items in their possession, it is proper for them to make inquiry in the way that we have provided. We think it is appropriate for there to be a defence in relation to this to distinguish those who legitimately have this material for the purpose of academic and other study and those who do not—who want to use it to encourage others to commit acts of terror. That is a mischief to which the Government have been very clear they want to direct their attention, have been very clear that they want to stop and have been very clear that they want to do it in a proportionate way. That is to enable those who are not culpable to have proper defences, but just as importantly to enable those who are culpable to be caught—it is part of our job. If I can turn—

Lord Eatwell: I am terribly sorry but I really do not understand the content of the noble Baroness's answer to the noble and learned Lord, Lord Lloyd. Perhaps the following question will help. Is it the will of the Government that persons should be prosecuted who commit the offences listed in Clause 2 unintentionally?

Baroness Scotland of Asthal: Clearly it is not. That is why we have set out the defences in Clause 2, as I have just indicated. That is why we have listened. That is why I propose to make amendments. That is why we are amending Clause 2(9). We have already referred to further amendments because we do not intend to catch those who should not be deemed to be culpable in this regard.

Lord Thomas of Gresford: With the greatest respect to the Minister, the question of the noble Lord, Lord Eatwell, was whether the people concerned should be prosecuted. The defence does not arise until they are prosecuted. Does a person have to go through the prosecution process, and when the prosecution case has been made out produce his defence? Surely not. That is the whole point of including intent as an ingredient of the offence and not leaving it until late in the case.

Baroness Scotland of Asthal: I know, because the noble Lord is still in practice, that he is very conversant with the way in which these issues are now prosecuted. The noble Lord will know that before a charge of any seriousness is made the CPS has to look at the evidence, the nature of what is said and the possibility of charging or not charging. In those circumstances one looks at all the circumstances of the case. So it will be perfectly possible for the Director of Public Prosecutions to decide which cases should or should not be charged and which cases should or should not be prosecuted. The totality of the offence and the defences are looked at before charge.

Lord Kingsland: I wish to follow up what I think is a very important point that has been made by the noble Lord, Lord Thomas of Gresford. Of course, in undertaking this analysis, the CPS would have to consider, on the basis of this offence, only the actus reus of the offence. It would not have to consider the mens rea because there is no requirement for a mens rea under Clause 2. So the point of the noble Lord, Lord Thomas of Gresford, is indeed extremely important. The fact of the matter is that a wide range of people could be prosecuted simply because they had committed the actus reus but not a mens rea, and they would have to fall back on a statutory defence in court. Why should they be in court in the first place if they did not intend the offence of dissemination?

Baroness Scotland of Asthal: Let us be absolutely clear about this. In relation to prosecutions it is the duty of those who prosecute to look at all the facts of the case. The changes that we have made in the past year mean that once the police have collected all the material and the circumstances are known, the CPS has to look at those circumstances and at the totality of the information and decide whether to charge. We have made it plain—I have made it plain repeatedly from this Dispatch Box—that it will be the duty of the Director of Public Prosecutions to consider which cases should or should not be prosecuted. That onerous duty—and I know that each person who has held that post has discharged it with integrity and honour—is to see whether all the circumstances justify a prosecution. We have all agreed that such prosecutions would be few and far between and will be looked at with great care. Those circumstances should be known before a charge is laid and it will be possible to look at those issues properly. It is simply not right to suggest that this would not be an appropriate way to deal with this.

Lord Lyell of Markyate: Will the noble Baroness please look at this again, because there may be two misunderstandings? The first question that has been at issue in this extremely important debate is whether the prosecution should have to prove intent in these circumstances. In my opinion they should have to do that and nothing that the noble Baroness has said has indicated why it should be left to the librarian or other person to prove their innocence. If she has a good explanation, no doubt she will give it.
	The second point, which I have heard several times in debates on this and other criminal justice matters, is that because such a case can be brought only with the consent of the Director of Public Prosecutions, the Government seem under the impression that the DPP will personally look at these cases. That is not what those words mean. If a Bill or Act of Parliament states that such a case must be brought only with the consent of the DPP, it means that it must be prosecuted by the Crown Prosecution Service. That is not the same as saying that it must have the consent of the Attorney-General, when one would expect him or the Solicitor General to be personally involved. It would, I hope and expect, be a fairly senior Crown prosecutor, and in any very serious case I would hope that the director would apply his mind, but it is not what those words in the Bill actually mean.
	It is important that unless the Government can show why there will be special circumstances exonerating the librarian or academic or whoever, the intent must be proved by the Crown. Having listened carefully to the noble Baroness, who is always enormously courteous and helpful, I have not heard that reasoning explained.

Baroness Scotland of Asthal: The defendant, if he is charged and the matter comes before the court, would have to prove his defence on the balance of probabilities, and the Crown would have to prove beyond reasonable doubt that the offence was carried out. The noble and learned Lord, Lord Lyell, is correct to say that the Director of Public Prosecutions would not deal with each and every case, but the noble and learned Lord knows that due to the special difficulty and nature of certain offences, those matters are dealt with not only by very senior members of the Crown Prosecution Service. Often the director will look at the matter himself when it is delicate and/or specialist. I can hazard a guess—I am sure that the noble and learned Lord, Lord Lyell, will agree—that it would be unusual for offences of this nature, which we all recognise will be few and far between, not to receive the attention not only of a very senior CPS lawyer, but of the director himself. These cases are very rare and their importance is never underestimated. I am therefore confident that these sorts of cases will receive the highest quality attention that the CPS and, indeed, the director is likely to have.

Lord Goodhart: Does the Minister accept that the real danger is not so much wrongful prosecutions, which probably would be few and far between, but the general chilling effect that this Bill will have, not only on libraries and universities but on all sorts of organisations, in the knowledge that they face the risk of a charge and may be prosecuted if the DPP decides to go ahead?

Baroness Scotland of Asthal: I sincerely hope not. I hope that, not only from what I have said but from what will be in the Bill, it will be absolutely clear that those who do not wish to encourage terrorism and those who do not wish to facilitate matters of this sort will be absolutely safe. That is what the Government certainly intend to happen and it is how we believe these clauses should be properly identified. I made it clear that the Government's view is that that is already possible without the amendments that we are now suggesting. Because of concerns that are genuinely held in this House and elsewhere, we have sought to go even further to ensure that that is put beyond any doubt. The Government's case is that the fears currently being expressed, although genuinely held, are ill founded, and we wish to do all that we can to ensure that those concerns are laid to rest.
	I think that in essence I have dealt with Amendments Nos. 24, 25A, 30, 36 and 37, and I turn to Amendment No. 39. Given the importance of the approach that we have adopted, we obviously cannot support this amendment, which would withdraw the defences from Clause 2. Such a change would make sense if the offence could be committed only through intent, but not if intent is not part of the central offence. Given that it cannot be, we believe that we must retain the defences. These are the means by which activity that would be illegal in one context is legal in another, but they still allow the offence to be effective. In other words, they are the means to allow the offence and its associated powers to be effective in tackling both the mindset of the disseminator and the act of dissemination. Therefore, we invite noble Lords not to pursue those amendments.
	The noble Lord, Lord Kingsland, referred to Amendment No. 27, with which I have not dealt. It relates to Clause 2, which we have discussed at some length. The amendment would remove subsection (3) from the Bill in its entirety. We do not see the merit of so doing. We believe that subsection (3) provides important safeguards. It clarifies what constitutes direct or indirect encouragement in the context of the offence of disseminating terrorist publications. In particular, it provides that the offence can be committed only if the publication in question is likely to be understood by those to whom it is made available as an encouragement to commit terrorist acts.
	As we have already indicated, there are plenty of other defences and safeguards to ensure that those who pursue legitimate scholarly, academic or other pursuits will not be committing the offence in Clause 2. In particular, we are widening the defence of non-endorsement, so all such people will be able to benefit from it. Nevertheless, we can see no reason to remove the additional protection provided by Clause 2(3). I understand that the noble Lord, Lord Kingsland, said that this is a probing amendment. We have looked at the subsection again and we think that it is a helpful, as opposed to unhelpful, clarification and that it is necessary.

Lord Stoddart of Swindon: I do not want to make a speech or prolong this debate but perhaps what the noble Baroness said about the burden of proof can be made absolutely plain. As I understand what she said, if the police believe that an offence has been committed under this part of the Bill, they will submit evidence to the Director of Public Prosecutions, who will then decide whether to prosecute. If he does so decide, it rests with the prosecution to prove that the man or woman is guilty and it does not lie with the defendant to prove that he or she is innocent. That is an important distinction, and I should like to have it on the record that I am correct in believing that the burden of proof will be on the prosecution.

Baroness Scotland of Asthal: The burden will be on the prosecution to prove the offence. The burden placed on the defendant in relation to a defence is to prove that defence on the balance of probability. But the overall burden remains on the prosecution.

Lord Kingsland: I thank the noble Baroness for her comprehensive reply to this group of amendments. So far as concerns Amendments Nos. 24, 25A, 30, 36, 37 and 39—that is, the amendments which deal with intention—I do not think that the noble Baroness can be in any doubt whatever about the feelings of this Committee. I do not recall any of your Lordships intervening for any other purpose than to support one or other or all of these amendments. I hope that I speak for all noble Lords who have participated in this phase of the Committee debate when I say that it is certain that all these amendments will reappear on Report, despite the valiant efforts of the noble Baroness to reassure us that they are wholly unnecessary.
	In particular, I am not at all reassured by the idea that the discretion of the DPP is a satisfactory substitute for the mens rea of a crime. It is a novel proposition. In fact, in my experience that assertion has never before been made in your Lordships' House by a Minister. I hope that by the time we reach Report, the noble Baroness will have seen the compelling force of all the arguments made in support of our amendments this afternoon. I propose to say no more about that issue, even though it is crucial.
	I would, however, like to say something about Amendment No. 27, which the noble Baroness addressed at the end of her remarks. I repeat my question to the Minister. What in Clause 2(3) adds anything to the Bill that is not already covered in Clause 1(1)? Clause 2(3) refers to "matter"; but in my submission the only matter that could possibly be covered by Clause 2(3) is a statement of the sort included in Clause 1(1). Why does the noble Baroness think that anything other than a statement could be covered by Clause 2(3)? I accept that in Clause 2(2)(b), which states,
	"information of assistance in the commission or preparation of such acts",
	is matter in addition to a statement; but apart from what is in subsection (2)(b), what matter other than a statement can be included in Clause 2(3)?
	In support of my argument, I refer the noble Baroness to Clause 2(7), which states:
	"It is irrelevant for the purposes of this section whether—
	(a) the statement or how it is likely to be understood, or
	(b) the usefulness mentioned in subsection (5)"—
	that is the definition contained in Clause 2(2)(b)—
	"is in relation to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally".
	If there is matter in addition to what appears in subsection (5) and a statement, why is that additional matter not contained in Clause 2(7)? Perhaps I could leave the noble Baroness to say when I sit down that she will write a letter to me on this matter since, from the expression in her eyes, I think that I am unlikely to hear her again on this topic at this stage of Committee.

Baroness Scotland of Asthal: I am more than happy to write to the noble Lord at length on this matter.

Lord Kingsland: I do not think that it will be necessary for the noble Baroness to write at length. I think that, once the point is clear, a very short letter will be sufficient. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 25A to 42 not moved.]

Baroness Williams of Crosby: moved Amendment No. 43:
	Page 4, line 30, at end insert—
	"(e) that the publication to which the conduct related was received by a library in consequence of its obligations under the British Library Act 1972 (c. 54) or the Legal Deposit Libraries Act 2003 (c. 28)."

Baroness Williams of Crosby: I am delighted to move an amendment that moves away from the issues we have been discussing in such detail and at such considerable length and I hope that the Government will find the first amendment to which I shall speak easy to accept.
	There are moments in life when details can throw an extraordinary shaft of light on issues much bigger than themselves. Anybody who reads the British Library Act 1972 will see that we were living in a world that was very different from the one in which we are living after 9/11. The Act is full of the ideal of creating a knowledge society, giving access to people globally to learn about huge ranges of information, wisdom, writings and publications from which they would benefit. It is a world that sets out huge, exciting ambitions for the British Library as one of the great sources, one of the beacons, of that world of knowledge, equalled only by the Library of Congress in America and one or two other libraries in the world. The Act has inspired the British Library not only to collect a huge number of publications from all sorts of sources globally, but also—this is not yet as well known, but it soon will be—to establish a fantastic network throughout the world for access to information, publications and the other things that are part of what a great education ought to be. I recommend to noble Lords who are working their way out of the detail of this somewhat depressing Bill that they spend a minute or two in the library reminding themselves of the world that we were trying to build in 1972, at least as far as education and libraries were concerned.
	We have come a long way from that to Amendment No. 43 which protects the British Library and that ambition by excluding the British Library from the provisions of the Bill as regards the dissemination of publications. Many noble Lords, not least the noble Lord, Lord Eatwell, who I am sure will speak briefly in this short debate on these two amendments, will be well aware that the law lays upon the British Library, and the other deposit libraries within universities—for example, the Bodleian, Cambridge University Library and Edinburgh University Library—the duty to acquire everything that is published and to catalogue it, care for it, make it available and archive it. It is typical of the British Library that it is already trying to set up archives about some of the astonishing events of our time; for example, the recent terrorist actions of 7 July 2005. It is the job of the British Library to make sure that the great events, and even the small events, of our lives are catalogued, cared for, made available and eventually archived so that we look after the history of our country and that of many other parts of the world as well.
	That responsibility is particularly embodied in the Legal Deposit Libraries Act 2003, which was rather surprisingly passed some time after the first few terrorist outrages but still stuck closely to the ambitions that I outlined quickly by accounting for some 1.5 million new publications every year. An astonishing sea of information and knowledge is coming in to the British Library and is protected by it for the benefit of the whole of mankind. Those two Acts of Parliament, both carefully considered and enthusiastically passed, comprise a heavy duty upon the British Library and its fellow deposit libraries, which they carry out to the best of their ability. Indeed, it is fair to say that the library system in the United Kingdom is, if not the finest, among the finest, in the world. We owe it to our heritage and to posterity and it is of vital importance if we are to build a knowledge society. It is something that we have to protect. This legislation—unwittingly, I suspect—could very well seriously damage it.
	Therefore, we believe that this simple amendment would protect the deposit libraries from finding themselves in a statutory tug-of-war in which it would be impossible for them to satisfy all the obligations laid upon them by statutes passed by Parliament. It is completely unsatisfactory to leave the situation as it is with libraries simply unable to do both the things that they are called upon to do—unless we can better clarify the obligations under Clause 2. The purpose of the amendment is cleanly and straightforwardly to exempt deposit libraries from the effects of this legislation. Of course, it would not cover any proposal to intend an act of terrorism or anything of that kind, which would be highly unlikely but, in the extreme case, could just be possible. I commend the amendment to the House.
	Before I sit down, I shall speak briefly to Amendment No. 44, which concerns a different issue; that of the maximum penalty attracted by offences under Clause 2. I commend to the House the proposal that the maximum penalty should be sharply reduced from seven to three years. It is already clear from the debates we have had that a lot of people who had no intention of being involved in a terrorist offence could still be caught. That is the nature of the fears that many of us have been expressing, including my noble friend Lord Goodhart and the noble Lord, Lord Kingsland. Therefore, it is swingeing to have a maximum penalty of seven years in a group of offences so unclearly stated and, in some cases, so difficult to understand how to avoid. I shall not pursue the amendment at this hour of the Committee's deliberations, but commend it to the House. If we withdraw the amendment, we shall bring it back at a later stage because we think that these sentences are wholly disproportionate. I shall add that the clear advice of the Joint Committee on Human Rights is that disproportionate offences carrying disproportionate penalties would not satisfy the European Convention on Human Rights and it is very questionable whether this penalty would. I beg to move.

Lord Eatwell: As chairman of the British Library, I thank the noble Baroness, Lady Williams of Crosby, for her kind words about the character and work of the library. In addressing this amendment, I would first like to point out that it refers only to the British Library. By its terms, it excludes the other legal deposit libraries. Only the British Library has a legal obligation to collect everything, whereas the other legal deposit libraries have the right to collect material but do not have to. In other words, they can choose from copyrighted material what they collect. So this amendment refers only to the BL.
	However, I am in a dilemma because the British Library, as I pointed out at Second Reading, and its staff are entirely behind the Government in their attempt to attack the causes of terrorism and the encouragement of terrorism. We therefore do not seek any form of special treatment. I acknowledged at Second Reading that there might possibly be a rogue ill-intentioned individual working at the British Library who should be prosecuted under the terms of the Bill for disseminating material or whatever it might be—the offences listed in Clause 2(1). But, of course in what I said, once again the Government's inability to provide any coherent answer whatever to the questions that have been raised on the issue of intent—other than they want to ensure that those who are culpable should be caught, which surely is not an answer unless they can show that incorporating intent would allow those who are culpable to escape—leads us to table amendments which would exempt institutions like the British Library from the terms of the Bill.
	I am afraid that the issue of intent undermines this clause time and time again and is the reason I am sure that the noble Baroness has been so kind as to suppose that the activities of the British Library should be exempted from the terms of the Bill; but, as its chairman, I recognise that it should not.

The Lord Bishop of Winchester: I welcome everything that the noble Baroness said on the amendment. I noted that she spoke of the extent to which the British Library engaged with and was influential among the network of library and library services across the world especially, I suspect, within the Commonwealth. That therefore gives me an opportunity to make an observation, which needs to colour a lot of our consideration of the Bill, and needs to be in the back of our minds. The Bill of course relates to behaviour in this country. But, particularly across the Commonwealth, we have a responsibility for all kinds of influence, even example, and in a range of states in which we exert much influence, there are significant threats to freedoms of all sorts, including intellectual and academic freedoms.
	Among my concerns about the Bill, at this point and at a number of others, is that the potential influence of the British Government and of British institutions may be weakened if our own legislation goes down illiberal routes in this, as in other matters. We need to keep our eye on how this and other parts of the legislation are likely to be quoted abroad.

Lord Bassam of Brighton: I am grateful to the noble Baroness, Lady Williams, the noble Lord, Lord Eatwell, and the right relevant Prelate for their contributions in the debate, which has usefully focused on the important work undertaken by the British Library and deposit libraries generally. There is nothing in the Bill, so far as the Government are concerned, that would want in any way to undermine the importance of the work that those libraries undertake, the value of the collections they put together and the way they do their work.
	We fully appreciate the intentions behind the suggested drafting. I listened carefully to what my noble friend Lord Eatwell said, in particular about the wish and the will of those who work for the British Library not to be exempted from the effects of the terrorism legislation because of the important part that it plays in countering terrorism generally.
	I intend to be brief because many of the arguments that have been rehearsed this afternoon relate as much to this amendment as they do to previous amendments. The Government recognise the very special position of copyright and deposit libraries and we entirely appreciate the way that those libraries have lobbied us on this issues. The Government have listened to those arguments advanced in your Lordships' House. We have listened to the arguments made in another place and outside the Chambers of Parliament. I know that my noble friend Lord Eatwell has had a lengthy discussion with the Home Secretary on these issues. We felt that the original wording of Clause 2 was appropriate, but we in government have, as has been made plain on many occasions by my noble friend Lady Scotland, decided to make further changes to provide comfort to those who do not share our view on how we see the legislation working.
	We propose to generalise the defence in Clause 2(9) so that it, like the defence in Clause 2(8), will potentially be available to everyone, not just to those who provide a service electronically. This would give libraries the protection which it has been argued they need, while also allowing for the possibility that there may indeed be, as the noble Lord, Lord Eatwell, said, a rogue librarian—a remote possibility I think we all accept—who might abuse his position.
	We are convinced that this is a far better means of protecting the libraries than that which is set out in Amendment No. 43. It could be argued that although Amendment No. 43 is similar to Amendments Nos. 21, 45 and 83, which have already been discussed, in that it is clearly well intentioned, we think that it might not serve the function which I suspect my noble friend Lord Eatwell and the noble Baroness, Lady Williams, intend, and that if we revise the defence as we have argued in the past, we think it should be unnecessary.
	I should also like to point out that the implication of the clause is that the mere stocking of a book by a deposit library is an offence. I would like to correct that. The possession of such publications is only an offence if it is held with a view to being disseminated as a terrorist publication. In addition, Amendment No. 43 could be positively misleading. It might suggest that libraries other than those referred to might not enjoy the defences in the clause which they should be able rigorously to deploy.
	The Government's proposed changes—and I appreciate these changes are not before the Committee this afternoon—would avoid that pitfall. So, for those reasons I hope that the noble Baroness and my noble friend Lord Eatwell will be able to accept that we have met, or certainly are strongly committed to meeting, the intention behind their amendment and afford in particular the British Library, which is one of the greatest institutions of its kind in the world, the necessary protection it seeks. Having said that, I hope the noble Baroness will feel able to withdraw her amendment today.

Baroness Williams of Crosby: I thank the Minister for his remarks, but I am rather disappointed. It is an issue to which we shall have to return for the reasons set out, I think very cogently, by the noble Lord, Lord Eatwell. As he pointed out, if intent were in the clause we would not be pressing the amendment. But it is not and we need to protect the British Library.
	Let me just express my—how can I put it?—disappointment with one thing that the otherwise dogged and, I think, highly loyal defence of the Bill put up by the Minister and the noble Baroness, Lady Scotland. We are not seeking comfort; we are seeking a major protection for the freedom of speech and expression in this country. If it were merely comfort, none of us would be sitting here hour after hour debating this Bill. It is not about comfort, it is about freedom. That needs to be said very loudly and clearly.
	It is also about not discouraging the great library experiment to continue to build in the way that it is already trying to do. The noble Lord, Lord Kingsland, and my noble friend Lord Goodhart could not have made clearer that one of the great problems that we confront at every stage of the Bill is what we have described over and over again as the chilling effect. It is not that librarians would not want to do everything that they could to support the Government in the battle against terrorism; it is that if they face the possibility of up to seven years in prison because they may not have taken every last step that they can to ensure that something does not happen, that has a terrifying curbing effect. We cannot pretend that that is not so. As I mentioned at Second Reading—I will not go on about it—those of us who lived through McCarthyism in universities in the United States saw it happen. We saw how career after career, ambition after ambition, aspiration after aspiration simply curled up and died in the face of the massive punishments that were given to people, a great many of whom later turned out to have been wholly innocent.
	I will withdraw the amendment, with every intention to bring it back if the Government cannot see their way to embody intent in Clause 2. Again, I do so not for reasons of comfort, but because the whole House needs to take a stand to defend some of our finest heritage and liberties. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 45 and 46 not moved.]
	Clause 2 agreed to.

Lord Goodhart: moved Amendment No. 46:
	After Clause 2, insert the following new clause—
	"DEFINITION OF TERRORISM
	(1) For the purposes of sections 1 and 2, "terrorism" means the use or threat of action where—
	(a) the action falls within subsection (2),
	(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
	(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
	(2) Action falls within this subsection if it—
	(a) involves serious violence against a person,
	(b) endangers a person's life, other than that of the person committing the action, or
	(c) creates a serious risk to the health or safety of the public or a section of the public.
	(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
	(4) In this section—
	(a) "action" includes action outside the United Kingdom,
	(b) a reference to any person is a reference to any person wherever situated,
	(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
	(d) "the government" means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom.
	(5) In this section a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."

Lord Goodhart: The purpose of the amendment is to define terrorism for the purposes of offences under Clauses 1 and 2 more narrowly than in the Terrorism Act 2000. The amendment repeats the definition of terrorism in that Act, with the omission of the references to violence against property and cyber-terrorism. I should point out that that definition is intended to apply only to offences under Clauses 1 and 2, not to the obviously more serious offences under Clauses 5 and 6 or, indeed, the other offences under the Bill.
	We are moving the amendment because, to begin with, any direct incitement to terrorism against property will be caught by existing legislation and we believe that there is no need to extend the new offences to terrorism that is directed against property unless it also involves a threat to life or health. That distinction is justified because Clause 1 and, in particular Clause 2, involve serious interferences with freedom of expression that may well be justifiable under Article 10 of the European convention where there is incitement to or encouragement of serious violence against individuals or acts that may put the health and safety of the public at risk, but it is not a proportionate response and is unjustifiable for less harmful kinds of threat.
	The amendment would go some way to meet the criticisms of the Bill provided by the Joint Committee on Human Rights. That restriction would improve the Bill without causing any damage to the purposes that it seeks to achieve. I beg to move.

Lord Harris of Haringey: I am intrigued by the amendment, because although its objective is to produce a new definition of terrorism for the purposes of the Bill, as I understood it, the Government have asked the noble Lord, Lord Carlile, to look at precisely the definition of terrorism. Is it not rather premature, given that many of the Bill's provisions will have to come back in a year's time because of sunset clauses, to be doing that in advance of the noble Lord's report, which I am sure that we are all looking forward to with enormous interest? Why does the noble Lord feel that that is necessary or sensible? Is it not a weird vote of confidence in his noble friend to suggest that we should prejudge his work?
	Secondly, from what he said, I heard that he would exclude cyber-terrorism from this definition of terrorism. Although I accept that much cyber-terrorism appears to be an attack on property, if the consequence of cyber-terrorism is that the emergency services cannot operate their telecommunication or computer systems, or if its effect is that the public utilities or food distribution system cannot operate, surely—

Lord Goodhart: I am grateful to the noble Lord for giving way. Perhaps this is something that we should be dealing with at the end, but it is a self-contained point that may be simpler to deal with now. If what was being encouraged was terrorism of the kind that the noble Lord has in mind, which involves the prevention of the emergency services acting properly, it would plainly be covered as something that creates a serious risk to the health or safety of the public—a definition retained under Clause 1.

Lord Harris of Haringey: I am grateful to the noble Lord for that intervention and I understand his point. I dwelt on it because I sometimes feel that issues around cyber-terrorism are considered as less serious, whereas I suspect that, as we move forward, the consequences of cyber-terrorism may be as serious as terrorism conducted by explosives or other more traditional methods. My point remains that I wonder why the amendment is before us today, given the work that the noble Lord, Lord Carlile, has been asked to carry out.

Baroness Williams of Crosby: I am very grateful to the noble Lord. Will he address one of the greatest difficulties that the Committee faces, which my noble friends are attempting to meet? That is that we are discussing legislation which, among other things, encompasses substantial penalties on our fellow citizens, before we have a definition of terrorism. My noble friend Lord Carlile, whose intellectual capacities I do not doubt for a moment, may well come up in a year with a brilliant definition of terrorism. However, as, with respect, the Government have not come up with any definition of terrorism, we are in the ludicrous position of imposing penalties on people for a crime that has not been properly defined, except in terms of itself. It is not that a real problem?

Lord Harris of Haringey: I am not convinced that it is. We have a definition of terrorism in the 2000 Act. Talking to the experts on counter-terrorism in the Metropolitan Police, as I do on a regular basis as a member of the Metropolitan Police Authority, I am aware that they feel that we are facing the greatest threat that we have ever faced from terrorists. It is therefore a matter of some urgency that we have on the statute book a number of the provisions in the Bill to enable the police to be effective in tackling that threat. Therefore, with all due respect, I am sure that it is not really sensible for us to wait a year, six months, or however long it will take the noble Lord, Lord Carlile, to produce his definition. We should work with what we have.
	I fail to understand why we should attempt an amendment to what we have today, when we have asked for a thorough review of all that goes into the definition to be brought before us at an early opportunity. I intervened in the debate to ask the specific question: why we are proposing this now?

Lord Elton: Would the noble Lord, Lord Harris, be satisfied if the definition of terrorism in the 2000 Act were imported into the Bill?

Lord Harris of Haringey: My understanding was that the definition of terrorism in the 2000 Act would prevail.

Baroness Scotland of Asthal: That is correct. I am very grateful to the noble Lord, Lord Goodhart, for tabling these amendments because it gives the Committee the chance to discuss the issue, which attracted a lot of interest when the Bill was going through the other place. The definition of terrorism is important. As, I hope, noble Lords are now aware, the Bill adopts the existing definition in Section 1 of the Terrorism Act 2000. Clause 33 makes a minor change to that definition to cover international organisations such as the UN, but that is not really the point in issue.
	The definition that we have is tried and tested, and the Government do not believe that it can be easily improved upon. Nevertheless, the noble Lord, Lord Goodhart, has had a go at making such improvement for the purposes of the offences in Clauses 1 and 2. For the most part, the noble Lord has drawn from the existing definition but with two quite important omissions: serious attacks on property and attacks on electronic networks. I suppose that it is for that reason that my noble friend Lord Harris mentioned cyber-crime. Serious attacks on property can clearly amount to terrorism. Anyone who witnessed the devastation caused by, for example, the attacks on the City of London in the 1990s could be in no doubt on that. Those attacks caused major economic loss, and the damage to London's prestigious financial centre cannot be quantified. I am sure that many noble Lords will also remember how terrifying it was for the people who witnessed and were troubled by it.
	Exactly the same arguments would apply to an attack on an electronic system. An attack on the national grid or the national air traffic control system would have profound consequences for the nation. But if we agree that such acts constitute terrorism, so should the encouragement, incitement and, I dare say, glorification of such acts. If I may respectfully suggest, it does not make sense to have one definition for terrorist acts and another for incitement of terrorist acts.
	Accordingly, we cannot accept the amendment. Furthermore, we suggest that the difficulties with them, which I have outlined, neatly illustrate the difficulty of coming up with a better definition of terrorism than the one that we have. The noble Baroness, Lady Williams, is right to say that we must discuss those issues, but all our parties agreed that we needed this Act, and quickly. We are very cognisant of the likelihood that we will have another Bill in which we will be able to look at those issues again, but all the parties felt that we needed to do now the work that we have undertaken. I acknowledged that at Second Reading and we all committed ourselves to it. We are now dealing with the provisions that are not consensual, but we should not forget that the majority are consensual.
	I indicated at Second Reading that we had invited the noble Lord, Lord Carlile, our independent reviewer of the legislation, to carry out a review of the definition of terrorism. It will be important that, when the noble Lord carries out that review, he has the benefit of the views and assistance of any noble Lords who think that something has been left out or could be improved. That will be our moment to look together at what we submit to him regarding any new definition. We are very grateful to him for agreeing to take that on. He has indicated that he will consult widely and we know that he will honour that commitment.
	It seems that the best way to proceed is to use the definition that we have, with the minor amendment indicated. I appreciate all the concerns of the noble Lord, Lord Goodhart, but it would be better to progress with the work that we have now, await the review of the noble Lord, Lord Carlile, and consider then what the definition should be, rather than act precipitously now, before the genuine debate on whether we should improve the definition of terrorism and whether it is possible to do so. I therefore invite the noble Lord to withdraw his amendment.

Lord Goodhart: The noble Lord, Lord Harris, said that we did not need to deal with the definition now because the noble Lord, Lord Carlile, would report on it in a year's time. He may or may not recommend that Clauses 1 and 2 should include a more limited definition of terrorism than appears in the Terrorism Act 2000. The Government may or may not accept his recommendation if he makes it. Even if they do, we may have to wait a considerable time to get a legislative slot. Meanwhile, we are left with what I certainly believe is too wide a definition for the specific purposes of the offence of encouragement created by Clauses 1 and 2.
	I do not dispute for a moment that attacks against property should be treated more generally as terrorist offences where they are inspired by terrorist motives. Of course serious attacks of that kind constitute offences such as criminal damage, which are quite distinct from terrorism and are offences in themselves. Incitement to such offences is also capable of prosecution under existing law irrespective of the law about terrorism. But we are talking about something at a lower level than incitement: encouragement. It seems right to distinguish between incitement and encouragement in certain respects, particularly where there is a lower level of harm to the public. Certainly any deliberate encouragement of anything causing violence likely to cause death or do great damage to public health and safety should remain an offence, but encouragement of what I might call the somewhat lesser forms of terrorism should not also be a criminal offence. After all, I see no prospect of any organisation linked with al-Qaeda advocating terrorism that is limited to damage to property or to electronic mechanisms and does not involve also the death of civilians or others as a necessary consequence. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 3 [Application of ss. 1 and 2 to internet activity etc.]:

Lord Goodhart: moved Amendment No. 47:
	Page 5, line 2, leave out from "applies" to end of line.

Lord Goodhart: Clause 3 raises a number of important issues involving the Internet. There is no doubt that the Internet can be used to spread terrorist propaganda. There are 24 amendments to Clause 3. In all but one my name is the lead name. It is impracticable to deal with them in a single group. Before I get on to this group, I should like to explain how the amendments are divided and, broadly, the topic of each group. Clause 3 extends offences under Clauses 1 and 2 to Internet service providers, which may not be aware of what they are transmitting, by an artificial extension of the concept of endorsement.
	There is no definition in the Bill anywhere of what is meant by endorsement. For example, is it purely internal or is it external? Can you do endorsement privately—if you agree with something, are you treated as endorsing it? Or, if you express to other people your agreement with a document, how do you provide evidence of that extension? To begin with, the concept of endorsement is very unsuitable for this Bill. Except to a limited extent under Clause 2(9), endorsement is not mentioned in Clauses 1 and 2; nor is it, in itself, a criminal offence. Here we have a wholly artificial definition: if you do not comply with the notice, you will be deemed to endorse the material mentioned in the notice.
	The first group of amendments gets rid of the concept of endorsement and turns Clause 3 into a freestanding offence of failure to comply with a notice to stop transmitting material specified in the notice. The second group, starting with Clause 49, deals with a number of technical problems envisaged by Internet service providers and is based on briefings that I, and other Members of your Lordships' House no doubt, have received from the Internet Service Providers' Association and other concerned bodies. The third group—Amendments Nos. 53, 56 and 58—deals with the absence of any checks on the police power to decide what should be contained in the notice given under subsection (2). The final group—Amendments Nos. 62 and 64—deals with wording that we believe is unsatisfactory.
	Let me go back to the first group, which involves the artificial concept of endorsement. Internet service providers largely do not and cannot monitor the material which they transmit on behalf of the users of their services. The Government may identify electronic material which encourages or assists terrorism. If they can find the people who put that material on the Internet, they can charge them under Clauses 1 or 2 without reference to Clause 3. But, of course, they may not be able to get at the source, especially if the material comes from abroad. They can therefore tell the Internet service provider which is transmitting the material in the UK to block that material or the whole of the website from which it comes.
	Subsections (2) and (3) of Clause 3 provide a mechanism by which the notice can be served on the Internet service provider to tell it to stop transmitting the offending material. It does that by saying, "If you don't stop transmitting this, you will be treated as endorsing this material and therefore guilty of an offence under Clauses 1 and 2". That is highly artificial and leads to unnecessarily complex drafting. It would surely be simpler and better to treat non-compliance with the notice as a freestanding offence. The amendments in this group are intended to achieve that result. Since non-compliance with the notice is a less serious offence than the original publication of the material, Amendment No. 66 provides for a maximum three-year sentence instead of the seven-year maximum for offences under Clauses 1 and 2.
	It is of course possible for an Internet service provider which receives a notice to say that the notice is invalid because what it is transmitting is not a terrorist publication. In practice, it will not do that because it has no real interest in doing so. An Internet service provider is not concerned with the content of what it is transmitting, it simply transmits it. Undoubtedly service of a notice effectively blocks the material that is mentioned in the notice. I spoke of that earlier. The Minister wrote to me pointing out that that was incorrect, which, strictly speaking, it is. The effect of the service of the notice will almost inevitably be to induce the service provider to block the material and not transmit it any further.
	Rather than having this highly artificial concept, we should say that where there is a terrorist publication—I have removed any reference to the belief of the police—and a notice is served, it should be dealt with as a separate offence and not as an offence under Clauses 1 and 2. I beg to move.

Baroness Scotland of Asthal: I thank the noble Lord for explaining how he believes this provision could or should work. Perhaps I may explain why I do not think that his amendment is necessary. To do that, I will have to clarify the purpose and effect of Clause 3, which I hope will help to make things clearer. I am grateful to the noble Lord, Lord Goodhart, for accepting that international terrorists use the Internet to disseminate and exchange information. Internet sites are used by radical groups advocating terrorism. They play a major role in the radicalisation of young and impressionable persons. Indeed, there is significant evidence to suggest that those responsible for the attacks in London in July were influenced by extremist messages that they found on the Internet.
	Clause 3 is designed to enable the police to address that problem. The clause provides a means by which the police can serve notices on those who host information on websites, requiring them to remove or to modify statements which the police reasonably believe constitute something that encourages terrorism or is useful to the commission or preparation of terrorists.
	However, it is important to recognise what this clause does not do. It does not create a new offence and we do not wish it to. Nor does it give the police the power to force people to remove material from Internet sites. It provides that if a person fails to comply with a notice which has been served he will no longer be able to argue that material on a website does not have his endorsement and, therefore, will not be able to take advantage of the defences in Clauses 1(7), 2(8) and/or 2(9).
	We think that is right. The notice is not intended to be a notice to a person not to commit an offence; it is a notice that there is a statement that possibly comes within those offences. The person can comply or not. If that person does not think that the statement constitutes an offence under Clause 1 or Clause 2, the person can simply ignore the notice. The only sanction for not complying is that, if subsequently prosecuted, the person would not have the right to claim that he did not endorse the statement.
	The noble Lord, Lord Goodhart, is right to point out that many providers post information on their sites, but have no idea about the content. Quite often they are appalled when that content is brought to their attention. It is right to note that in those circumstances, a number of providers have recorded shock and alarm. So this is a way of identifying for them that there may be material on their sites which falls into that category.
	The effect of the amendments would be to convert Clause 3 into a separate, stand-alone offence. We are not sure that that is either desirable or necessary. In providing a notification procedure under Clause 3, we simply recognise the fundamental point that those who control websites can be totally unaware of the content placed on their sites by others. The amendments tabled by the noble Lord would create a stand-alone offence for what we think would be no apparent gain. We are not trying to catch people who unknowingly have allowed their facilities to be used; we want to give them notice so that they can act if they deem it appropriate to do so because they do not agree with the posted content.
	Under the current drafting, if a person thinks that a notice that has been issued requires the removal of information which the person does not consider constitutes an offence under Clauses 1 or 2—I remind noble Lords that conduct which does constitute an offence under those clauses is of a very serious nature indeed—they need only to ignore the notice. Nothing else flows from it. If, however, they do think that the material constitutes an offence, they ought either to remove it or to amend it. If the statement is not removed and the police think that it constitutes an offence, the police can then prosecute. That is what is required under the present drafting. We cannot see what this amendment would add.
	I should also like to point out that in our constructive discussions with representatives of the Internet industry, there has been no desire on their part to alter Clause 3 to make it into an offence. I see no apparent gain in accepting the amendments. The industry is perfectly content to assist us with this. It is comfortable with the phrasing of the provision. For those reasons, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Goodhart: I am grateful to the noble Baroness for her explanation. I should say that I have been given some indication by certain Internet service providers that they would prefer the stand-alone offence. For that reason, I thought it appropriate to raise the matter for debate. However, I do not regard this as one of the more important groups of amendments. That being so, and having heard the explanation given by the noble Baroness, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 48 not moved.]

Lord Goodhart: moved Amendment No. 49:
	Page 5, line 7, at end insert "other than where the publication or the conduct, as the case may be, has taken place outside the United Kingdom"

Lord Goodhart: In moving Amendment No. 49, I shall speak also to Amendments Nos. 50, 52, 54, 59, 60, 67 and 69. This large group of amendments raises a number of different issues, the link being that all of them are of concern to Internet service providers. However, I shall take them together because it would be inappropriate to hold a separate discussion on each one. I regret to have to admit that I am not an expert in the field and wish that I had more knowledge than I do of these very detailed issues.
	Amendment No. 49 was suggested by Internet service providers, but having looked at it, I think that its consequences are in fact undesirable and I would not wish to encourage it. I therefore move on to Amendment No. 50, which is a paving provision for Amendment No. 69. If the previous group of amendments had been accepted, this would be unnecessary because the offence would arise only if there was a refusal to comply with the notice. But since the amendments were not accepted, Internet service providers may face a prosecution even without a notice being given.
	The London Internet Exchange Limited, LINX, and the Internet Service Providers Association drafted Amendments Nos. 50 and 69, and we have adopted them. Their purpose is to ensure that Internet service providers do not face a prosecution for material forwarded by them but which they knew nothing about. This covers three specific situations where the role of the Internet service provider is as "a mere conduit", "the hosting of an information service", and where it provides "an Internet caching service". Those are all terms of art, the meanings of which are summarised in Amendment No. 69.
	I should say that this is no longer necessary in relation to Clause 1 since the introduction of the intention test means that an Internet service provider in one of the specified categories plainly will not have the relevant intention. But so long as there is no intention test in Clause 2, we still need to ensure that Internet service providers are not subject to prosecution for the activities listed in Amendment No. 69. I recognise that this may be a defence specific to Internet service providers under Clause 2(9), but once again they should not be forced to rely on raising a defence to what otherwise would be a criminal offence.
	In practice, Internet service providers cannot be expected to monitor these specified services and should not have to prove their innocence. These amendments would give effect to Regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002 implementing the Electronic Commerce Directive (00/31/EC) of the European Communities. If the burden of proof is placed on a defendant to show that it falls within Regulations 17 to 19, Regulation 21 requires that it should be an evidential burden of proof only, and so far this fact has not been recognised in the Bill.
	The next sub-group comprises Amendments Nos. 52 and 54. I understand that LINX and the ISPA are satisfied by the alteration to two working days and I shall not press the point further. Amendment No. 57, however, is one of some significance. It relates to repeat statements; that is, statements which are in the same form or to the same effect as a statement which was originally the subject of a notice and has been removed after the service of the notice. It is easy for a statement which has been blocked following a notice under Clause 3(2) to reappear as a repeat statement, perhaps from a new website. If it goes through the same Internet service provider it is treated as being covered by the original notice. No new notice is needed and the Internet service provider's only way out is to prove a defence under subsections (5) or (7).
	I understand from LINX and the ISPA briefing that it is technologically impossible to monitor a network for a statement which may be "to the same effect". Further, imposing a requirement to carry out a general monitoring operation would be contrary to Article 15 of the directive. We therefore propose that subsections (4) and (5) should be deleted. We leave it to the Government to propose alternative solutions which recognise the serious practical problems that ISPs have in complying with subsections (4) and (5) as they now stand.
	Given the speed with which the legislation has been introduced, one of the problems that has arisen is that it was impossible to have adequate prior consultation. In the ordinary course of events, if the Government had produced and published a draft Bill, it would have been possible for the ISPs to make their representations to the Government before it was published as a Bill. I hope that the Government are now discussing these issues with the ISPs and that they will be prepared to revise Clause 3 on the basis of those discussions.
	Amendments Nos. 59 and 61 concern the actions which are needed by an Internet services provider to bring itself within the defences to prosecution provided by subsections (5) and (7). These are available only if the defendant has,
	"taken every step he reasonably could".
	We propose that that should be reduced to "reasonable steps". It may appear that there is no real difference, but there is. The difference is that as the Bill now stands a court would have to have evidence about all the steps which could possibly have been taken and then consider whether, in the case of any possible step, it was reasonable not to take it. Our formula would mean that the steps taken must be reviewed as a whole, and if in the circumstances these amount to "reasonable steps", it is not necessary to consider whether some other steps which were not taken might also have been reasonable. This would reduce the burden on the Internet service providers. It would not damage the effectiveness of the Bill because there is little doubt that people who are determined to do so will gain access to terrorist websites anyway.
	Amendment No. 60 deals with a problem created by subsection (6). This provides exemption from the monitoring of transmissions as a reasonable step if the Internet service provider does not exercise any selection or editorial control over the contents of what is transmitted. A number of Internet service providers exercise a limited degree of editorial control over their transmissions. Some systems make it possible to exercise partial control over transmissions in certain contexts—for instance, child pornography—but these involve automatic monitoring with little demand on human time within the ISP. I am not aware of any programs presently available which would identify and make it possible to exclude terrorist material, and it would be very difficult indeed to create one. Until that happens, it is unreasonable to exclude ISPs which exercise limited control over transmissions from the exemption under subsection (6).
	Finally, I have received draft amendments from BT. These raise concerns related to those of the ISPA—indeed, BT is a member of the ISPA—but which differ in detail because BT has somewhat different functions from the specialist Internet service providers. Unfortunately the amendments arrived late yesterday afternoon—too late to be tabled for debate today—but I am informing the Government now that they have been received and, if it appears necessary to do so, they may have to be debated at Report. I apologise for going into some rather technical details but that is unavoidable in Committee. I beg to move.

Baroness Scotland of Asthal: I thank the noble Lord for his careful exposition of his amendments and the way in which he has brought them forward. I plan to deal with the amendments in the following order: first, with Amendment No. 49; then with Amendments Nos. 50, 60, 67 and 69 as a group; then with Amendments Nos. 52 and 54 together; then with Amendment No. 57 alone; and then with Amendments Nos. 59 and 61 together. They fit more easily that way.
	The effect of Amendment No. 49 is to limit the take down notice system to publications and conduct caught under Clause 2 occurring within the United Kingdom. I remind the Committee that the Clause 2 offence does not have extra-territorial effect, in any event, by virtue of Clause 17. The amendment is unnecessary in so far as it relates to conduct criminalised by Clause 2.
	As to the publishing of terrorism-related statements, limiting an offence that targets terrorist publications on the world wide web to the United Kingdom is a seriously retrograde step which effectively undermines the entire regime. If the amendment stems from the belief that service providers served with notices outside the United Kingdom may not be able to comply with the notices by virtue of the law of the third country in which they operate—which might, for example, prohibit take down in the absence of specified governmental permissions—I can assure the Committee that Clause 3 already deals with this by providing any person who is served with a notice a get out if they have a reasonable excuse. Plainly any service provider who was prevented from complying with a Clause 3 notice by the law of the country in which it operates would have such an excuse.
	Amendments Nos. 50, 60, 67 and 69 all appear to have as their basis the desire to ensure that the provisions of the Bill are consistent with the e-commerce directive and the Electronic Commerce (EC Directive) Regulations 2002 as they affect certain providers. The Government's position is that the offences in Clauses 1 and 2 are clear: where someone is merely providing an electronic service and does not endorse the offending statements they will not normally be caught by any offence unless they do not comply with a notice. Given this, we see no reason why service providers to whom the Electronic Commerce (EC Directive) Regulations 2002 apply should not be covered by the offences in Clauses 1 and 2 and the notice provisions in Clause 3. The 2002 regulations in no way preclude this. For this reason I cannot accept Amendments Nos. 22, 50, 67 and 69, tabled by the noble Lord, Lord Goodhart.
	Amendment No. 67 is also technically deficient in that it is not the transmission but the provider who benefits from the exemption from criminal liability under Regulation 17 of the 2002 regulations. It is true that Internet service providers in the United Kingdom were concerned that our provisions on repeat statements might contravene the e-commerce directive, which requires that a general obligation to monitor cannot be placed on those Internet service providers who fall within its terms. They are right about that. We were not of the view that the Bill placed such an obligation on such providers, but we brought forward an amendment in the other place to put that matter beyond doubt because we understood that they were worried. That amendment inserted subsection (6) into Clause 3, which will ensure that where Internet service providers only transmit or store information, and have no involvement in selecting the information, the reasonable steps that the provider is required to take by subsection (5) to prevent repeat statements should not be taken to include any general monitoring.
	I suspect that Amendment No. 60 is an attempt to ensure that an Internet service provider does not lose the protection of subsection (6) merely because it employs editing or selecting programmes to block serious forms of pornography. However, the noble Lord's amendment goes way beyond that to cover not just pornography but other material not related to terrorism. This would effectively render subsection (6) worthless, resulting in a much greater degree of protection than even the directive requires for those Internet service providers which are covered by it. More importantly, it would permit terrorist website administrators easily to circumvent the repeat statement provisions with the serious consequences that I have already outlined.
	While Amendment No. 60 is not acceptable for the reasons that I have described, the noble Lord, Lord Goodhart, is right that we would normally have had more time in which to discuss it. Following further conversations with the industry, we are considering further amendments arising out of concerns that they have expressed about Clause 3(6). That subsection may go further than we had intended by adversely affecting Internet service providers which block content in response to specific cases of, for example, child pornography. We will bring those amendments forward on Report.
	I think that the noble Lord indicated that he would not press Amendments Nos. 52 and 54 because they have been resolved. I see him nodding, so I will not trouble the Committee with those matters. I must say that Amendment No. 57 would have a seriously limiting effect on the practical application of Clause 3. Subsections (4) to (7) of that clause are designed to prevent circumvention of the provisions by requiring that where a notice has been served and a statement taken down, the recipient of the notice must also take reasonable steps to prevent the same statement appearing again. The type of steps that a web host could take would be, for example, blocking the access of certain users to its website, closing parts of the website and other measures of that kind. If these provisions are removed, as the amendment proposes, the police would have to apply to a judge each time the statement appeared. That would be unworkable as it would effectively mean that offending statements would be able to remain online virtually permanently, thereby rendering the clause useless. The amendment is also technically defective as it would leave in place subsections (6) and (7), which are meaningless without subsections (4) and (5).
	Amendments Nos. 59 and 61 would amend the repeat statement provisions. They would change the current drafting from,
	"every step that he reasonably could",
	to "reasonable steps". I would like to persuade the noble Lord that that is quite a significant change. The amendments would probably serve only to draw attention to what such steps would be rather than make any difference. Moreover, "reasonable steps" creates problems that do not exist in the current drafting. The present drafting makes clear that the person would have to take every step that he reasonably could to prevent a repeat statement appearing. "Reasonable steps" alone could be interpreted as some of the steps that the person could take but not all of them. The person could offer the defence that he had taken reasonable steps in accordance with the legislation, but had still not taken every step that he could have taken. For those reasons, in particular that Clause 3 does not create a new offence or give the police the power to close websites, I hope that the noble Lord will be content to withdraw his amendment. As I have said, we are continuing to talk to the industry about the problems and consequences that have been highlighted by Amendment No. 60.

Lord Goodhart: My Lords, I am grateful to the Minister for her reply. I am pleased to hear that discussions are continuing with the profession and that it is likely that further amendments will be made to meet what certainly seemed to be legitimate concerns on its part. I have some difficulty in making a further response because it clearly depends on what further briefings I may get from the ISPA between now and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 50 to 52 not moved.]

Lord Goodhart: moved Amendment No. 53:
	Page 5, line 17, leave out ", in the opinion of the constable giving it,"

Lord Goodhart: This group of amendments raises an important issue which has been insufficiently discussed. Clause 3(2) would allow a constable of technically any rank, although it would no doubt be a constable of at least moderate seniority, to give a notice to an Internet service provider requiring it to block the transmission of something which the constable in question thinks is terrorism-related. As I have said previously, it is not the notice which blocks the transmission but the action of the Internet service provider.
	Blocking an Internet transmission is self-evidently a serious interference with freedom of communication. As we all know, the Internet is an unparalleled method of transmitting information and opinions around the world. A number of countries with oppressive regimes therefore try to control Internet services to block what we would regard as legitimate and, in many cases, even highly desirable transmissions. Those countries are known to include China and Saudi Arabia, and, no doubt, a number of others as well. We must therefore be very careful about going down that particular path. We recognise that some power to ensure that terrorist websites are blocked is needed but, to ensure that this is limited to what is necessary, the police should have to get leave from a judge to serve a notice.
	I am not suggesting that there should be a hearing on that application—or anything in the nature of a full hearing—or that the ISP to which the notice is intended to be delivered should be notified in advance, so there would be no significant delay. But the judge should have the power to tell the police that they have not shown a prima facie case and cannot serve the notice. The police may therefore think twice about asking leave to serve a notice when there is real doubt about whether the message in question really is a terrorist message. Those issues are covered by Amendment No. 53, which makes the test whether the message is a terrorist message objective rather than the view of the constable by removing any reference to the "opinion of the constable". Amendments Nos. 56 and 68 lay down rules about applications for leave to serve the notice and the judges who can give that leave.
	One reason—and it is an important one—for providing judicial involvement in the process is simply that an ISP is not likely to challenge the notice because it has little or no interest in doing so. When the notice has been given, rightly or wrongly, no one else is likely to intervene. Therefore, as the Bill now stands, it puts into the hands of the police a powerful weapon that could be abused without there being any real prospect of any remedy being given. It is different from questions such as the blocking of obscene publications, when the involvement of a judge is not obviously necessary, because the concerns with freedom of expression are nowhere near as significant.
	The Committee should recognise that this power raises some very sensitive issues around freedom of expression and community relationships, and I believe that this is one of the most important issues in the Bill. I beg to move.

Lord Kingsland: Our names are added to the amendment and we wholly endorse what the noble Lord, Lord Goodhart, said in support of it. The text as it stands could be a serious interference with the freedom of speech, particularly as there are no stipulations about what knowledge or status the police officer would have. A constable is mentioned, and that is that. It is very hard to see how someone of that status, however competently they fulfilled their role, could possibly have the expertise to make the judgment that they would be asked to make. So I respectfully submit that the amendment is essential to make Clause 3 compliant with what we would expect of a clause respecting the freedom of speech.

Baroness Williams of Crosby: I make a very small point in support of my noble friend's amendment, but it is an important one. Increasingly, the relationship of the police to the Internet relates to certain areas of crime, and we are all very much aware that some of the crimes to which it relates are ones about which the public feel very strongly. I refer to stalking and paedophilia, for example, and to other areas with regard to which only recently, in the past few years, the police have inevitably had to include the Internet as a crucial source of information about people who may be prosecuting particularly disagreeable and horrible crimes. They have very much less relationship to the Internet in what one might call its beneficial aspects, which relate to education and the extension of information about other countries—sometimes of the most innocent kind, such as information about family histories.
	Will the Minister bear in mind in considering my noble friend's arguments and those of the noble Lord, Lord Kingsland, the culture of the constable who may deal with these issues? That is all the more necessary because, if he is someone with a good deal of knowledge of the Internet, that is almost certainly the area in which he would have been working before he began to deal with issues that might impinge on terrorism. Quite often, the background that someone's culture gives them can be a substantial influence on how they regard a case that falls on the margins. Therefore, without wishing to delay the Committee further, I ask the Minister when she considers this matter to look closely at whether it would not be more appropriate to have someone of a more detached status in that position, which would be met by my noble friend's suggestion that these decisions should be in the hands of a judge rather than a constable.

Lord Cameron of Lochbroom: I have a certain problem with the proposals. The interpolation of judicial authority relates to a notice that is declaratory that, as Clause 3(3)(a) says,
	"the statement or the article or record is unlawfully"—
	observe the word—
	"terrorism-related".
	My concern is whether it is appropriate that in a matter of this kind the court should be involved, and my concern becomes the greater when I turn to Amendment No. 68, which deals with the definition of an "appropriate judge". The amendment says that in Scotland that will be,
	"a sheriff or a judge of the Court of Session".
	In Scotland the Court of Session is a civil court; it is the High Court of Justiciary that is the criminal court. It might be said that what is involved here is properly a criminal matter and not a civil one and would therefore fall properly within the criminal jurisdiction, which in Scotland is exercised by the High Court of Justiciary. I hasten to add that that problem does not arise in England because the High Court has both criminal and civil jurisdiction.
	In parenthesis, I point out that my Amendment No. 125, which is related to the definition of "senior judge", where that appears in Clause 23(9), in so far as it concerns the extension of the period of detention of terrorist suspects, which is again a criminal and not a civil matter, is directed to the same point. Perhaps out of courtesy I can give that information to the Minister now. I also point out that even in this Bill, by contrast, forfeiture proceedings in Schedule 2 are declared by paragraph 7 to be civil proceedings and are therefore appropriately to be instituted in Scotland either in the Court of Session or in the sheriff court, which exercises a civil and a criminal jurisdiction.
	For those reasons, at this stage I would want to be convinced that it was appropriate in the first place to bring in any judicial authority to the issue of a notice. How it might be done otherwise is another matter; but if you have a declarator that something is a terrorism-related publication and thereafter there is the opportunity, it may be, for further proceedings if the notice is not obeyed, it might be difficult to argue that in fact—whatever the opinion of the judge—it was not something that was struck at by the Act.
	With regard to Amendment No. 68, I simply express concern that if there is to be an appropriate judge, as defined, it should be one who exercises criminal jurisdiction.

Baroness Scotland of Asthal: I agree with the noble and learned Lord's caution for the reasons he gives. Of course, the notice we are talking about, contrary to the nature of the amendments moved earlier by the noble Lord, Lord Goodhart, is not an offence; it is a precursor to the commencement of proceedings. If the notice is complied with, nothing flows therefrom. If the notice is not complied with—either because the individual, having looked at the material, does not agree with the assessment that has been made about the nature of the content, or because they agree with the content—the only thing that flows from that, as we discussed earlier in Committee, is that they would not thereafter be able to claim either that they were not aware or that they did not endorse the statements that were made.
	Further, the noble and learned Lord is right to say that if a judge had made a declaratory endorsement of the publishing of that notice, it would be difficult for anyone thereafter to suggest that the notice was in fact incorrect in its declaration that the matters complained of were indeed of a terrorist content. We do not think it necessary or appropriate for judicial oversight for the reasons given by the noble and learned Lord, Lord Cameron, but also because, if one looks at the structure, it would be too burdensome.
	The effect of these amendments would be to introduce judicial oversight with regard to all notices, and in this instance a notice is issued only if a judge is satisfied that the notice relates to statements or conduct specified in Clause 3(1), requiring the police to satisfy a court that there is evidence to suggest that the conduct in question is an offence. If the construct of the noble Lord, Lord Goodhart, was that we were in fact creating an offence, I can see that that might be appropriate, but, since we are not, we do not think it necessary. By its nature, it is a far more burdensome process than the one we have provided for in the Bill as it stands.
	As the noble Lord has already accepted, the Internet is a fast-moving world. There would have to be good reason for introducing delay in the clause. We assume the intention behind the amendment, by requiring the police to satisfy a court that there is evidence to suggest that the conduct in question is an offence, is that the Bill would provide greater protection to the individual than currently—but this is what is provided under the existing clauses.
	As I have made clear, if the website host does not comply with a notice, the police will have to choose. They have to elect whether to prosecute under Clauses 1 and 2, providing a full evidence case that satisfies a court, just as would be required under the amendment to Clause 3. Requiring the police to go to a judge before issuing a notice slows down the process at the cost of increasing the risk that the statement, article or record will have a negative effect on those seeing it and delays the speed at which a notice can be issued to a person who may or not be aware of the presence of such material and enable them to remove that material. The net result of this does not provide any more protection of the individual than they already have under the current drafting.
	Amendment No. 56 also makes provision for the Secretary of State to make regulations to,
	"provide for an application to be heard without notice to the relevant person and in his absence",
	so that the person on whom a notice is served,
	"may apply to a court for the revocation of the notice".
	Again, we can see no real benefit to that process. First, as I have said, we do not think the police ought to have to go court before issuing the notice. Secondly, for a person to be able to revoke a notice seems unnecessary.
	The notice is not intended to be a notice to a person not to commit an offence; it is a notice that there is a statement that possibly comes within those offences, and the person can choose to comply or not. If that person does not think that the statement constitutes an offence under Clause 1 or 2, that person can simply ignore the notice. The only sanction for them not complying is that the person, if prosecuted, does not have the right to claim that he did not endorse the statement. We see no useful role for the revocation process. The amendments are, I suggest with the utmost respect, not necessary.

Lord Thomas of Gresford: Is this not one step away from an ASBO issued by a policeman on his own opinion and judgment? As my noble friend said when he introduced the amendments, one does not know what the policeman's experience is, or what his views or opinions are. By requiring the police to go to, shall we say, a circuit judge, the matter is not delayed by more than maybe half a day. I do not see that it is so vital to remove offending material immediately that an application to the court to have some judicial involvement is not justified.
	This is just another example of the way in which the Government seek to issue notices to people so that they will commit offences by not obeying those notices. Here it is just one remove from saying, "We may prosecute you, and you will not have a defence".

Lord Kingsland: I am going to make a slightly different point from the noble Lord, Lord Thomas of Gresford, but it is within the same sphere of interest. It is true, as the Minister says, that, as a consequence of the issue of the notice, the person to whom it was issued need not comply; but that puts a severe onus on that person. If that person does not comply, and carries on because he thinks that what is in the statement is perfectly innocent, he deprives himself of the defences under Clause 1(7), as the Minister said earlier in a slightly different context. Who is going to be prepared to take that risk—especially in circumstances where the overall responsibility for deciding whether prosecutions are made lies in the hands of the DPP?
	I respectfully submit that this is a wholly appropriate situation where a judge should be engaged before a notice is issued. The Minister said that this would delay the process, but that is true wherever a judge is involved, whether in matters of the Internet or general criminal procedure. The fact that going to the judge delays matters is, in my submission, neither here nor there. The question is whether a judge should be involved, and in our view—I share entirely the opinion of the noble Lord, Lord Goodhart—a judge must be involved.

Baroness Scotland of Asthal: I want to deal with the issue of culture, which was raised by the noble Baroness, Lady Williams. I apologise to her, as I had written "culture" in my notes, but I did not come to it. I take on board what she said about culture, and she is right. The majority of those who have had to deal with the Internet from the police side are dealing with the more pernicious element. That is important, and must be considered.
	Additionally, one must consider that those who will be tasked with terrorism issues will have that specialist knowledge too, so they will be looking at material in which the terrorist element, with regard to the way terrorism is promoted and propagated, is the nature of the material they will be seeking to remove. It is right that I say that, because it is not culture but specialisation. One of the things we have had to consider seriously is the effect that promulgation of terrorist material has had on the radicalisation of our youth and the impact it can have, very quickly, on those who are susceptible to it.
	So the fact that the specialists will be operating this is actually not a matter that should cause us great concern. I think it is a matter that should be of great reassurance. Many of us are not scandalised but upset by things which perhaps are not as familiar. For example, I had the dubious privilege of representing local authorities and parties involved in quite serious paedophilia cases. That means that one's eye is trained to the distinction which one must draw between inappropriate behaviour and serious behaviour that is culpable. One is therefore more attuned to looking at that which is seriously pernicious. I think that that is the nature of the work that the police will do.
	One also has to understand—and the noble Baroness is right about this too—that the Internet is a very powerful instrument. It is a powerful instrument for good and it is also a powerful instrument for evil. Making that decision is difficult. The noble Lord, Lord Thomas of Gresford, says, "Isn't it absolutely proper, therefore, to say that you should go to a judge on every occasion?". We come back to the point made by the noble Lord, Lord Goodhart, in an earlier amendment, that many Internet service providers have no idea about the content of the material that is put on their sites. Many of them have welcomed the fact that we have, in working with them, been able to identify the parts of the material that are unlawful for various purposes and are pernicious in nature. They have been anxious to remove inappropriate material from their sites and we have been able to express welcome and gratitude for that.
	The issue then is what to do about the notice. We have an opportunity to notify the Internet service providers of material that is inappropriate. They then have a choice to make: the decision is whether to take it down. There has been no suggestion that the police or others in the areas in which we have worked have behaved inappropriately in the matters they have so notified. We do not believe that there will be a significant difference here either.
	It is a two-stage process because after the notice has been given the police will then have to consider the nature of the material, whether they wish to prosecute, and then produce material that will go before the judge. We think that that is the appropriate time. We do not think that it would be appropriate to bring the judge in at this stage for the reasons properly given by the noble and learned Lord, Lord Cameron of Lochbroom. The noble and learned Lord makes an important point. It is right to say that if a judge has adjudicated on the content of this notice which is declaratory, it would be very difficult for an individual thereafter to claim that they disagreed with the definition of that content.
	We think that the most appropriate system is the one that we are advancing. We do not agree with the noble Lord, Lord Kingsland, that, once someone has a notice, they suspend all independent assessment and then simply comply. There has been compliance on the notices that have been issued in other circumstances, but I certainly cannot say that that compliance has been 100 per cent. People have issued and made their own judgments about it. We allow for that eventuality here too.

Lord Goodhart: I begin by accepting entirely the remarks of the noble and learned Lord, Lord Cameron of Lochbroom, that the amendment should refer to the High Court of Justiciary rather than the Court of Session.
	Moving on to the substance of this matter, of course I accept that it will be open to a service provider who receives a notice to argue that the material it is transmitting is not terrorist material and that no offence is committed. The problem really is that no service provider is ever conceivably going to challenge that. The loss from complying with the notice is minimal whereas the potential cost of objecting to it is enormous. There will be the prosecution, the legal costs and everything of that kind, which will run potentially into tens of thousands of pounds.
	I think that one has to accept that in the special circumstances of what one is dealing with here, if there is no judicial intervention there is absolutely no realistic check whatever on an abuse of power by the police. I understand the reason why judges may not wish to get involved in this, but who else can? It seems to me that judges are far and away the most appropriate people to take that decision. There will not be a hearing. All the police will have to do is to provide what is basically prima facie evidence to show that there is a good case for taking the material off the website. One would expect that as a rule that would be acceptable. But we need a check for the occasional case where it is an abuse of power.
	The judicial role here as I envisage it is not a hearing. It is not a trial, and nothing that the judge says will predetermine the result of any decision of the court in the unlikely event that the Internet service provider does refuse to comply with the notice. What I envisage here is something that is more appropriately the kind of decision taken by a judge when authorising the issue of a warrant than an actual decision at a trial. So it is not, I think, an enormous burden on a judge. It is not an enormous burden on the police to make out their case. But we need in these circumstances a check on abuse of power by the police. The Government have not come up with an argument that persuades me either that this is unnecessary or that there is an alternative to the proposals in our amendments. This is plainly one of the issues to which we will wish to return at later stages of the Bill. But, for the present, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 54 to 61 not moved.]

Lord Bassam of Brighton: I beg to move that the House do now resume. In moving the Motion, may I suggest that the Committee stage begin again not before 8.30 pm? For the benefit of the House, I ought perhaps to point out that the timing on the Unstarred Question for Back-Bench contributions is stated as nine minutes. If that were to be followed through and all noble Lords were to use the maximum and the opening and winding speeches were to the maximum as well, we would be running well over the 60 minutes permitted. So may I suggest to noble Lords that they use eight minutes, which will take us fractionally over the hour?

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Dyslexia

Lord Addington: rose to ask Her Majesty's Government:
	What further proposals they have to deal with dyslexia throughout the educational and working lives of the population.
	My Lords, I thank all noble Lords who have put their names down to speak in this short debate and declare a series of interests. I am dyslexic, a patron of the Adult Dyslexia Organisation and a vice-president of the British Dyslexia Association. I shall now explain why I tabled this Question at this time. The reasons are twofold. First, it is always useful to obtain guidance from the Government on how a disability is interpreted and viewed. We can do this by tabling Questions. Secondly, I believe that over the past few months and possibly for slightly longer sniping has been directed at dyslexia and the concept of dyslexia. Indeed, there has been a serious attack with regard to the validity of the condition. For example, it has been suggested that the number of prisoners with dyslexia has been greatly overestimated. That matter is probably best dealt with in the debate that will be initiated tomorrow by the noble Lord, Lord Hurd, to which I shall contribute. Therefore, I shall try not to address that issue today.
	A series of articles has appeared in various papers stating that people were faking dyslexia to gain extra time in exams and other concessions. I thought about that but was not moved to address that issue because exactly how much help would extra time in an exam be if you did not know the relevant answer? Perhaps it is thought that with an extra 15 minutes per question a person might deliver himself or herself into a zen-like state and receive enlightenment with regard to the answer to question four. However, if the aim of an exam is to elicit information from the person being examined and to test his ability to answer the questions, surely extra time will not help very much if you do not have the relevant information. I hope the Minister will concur that the extra time statement is silly and counter-productive. However, if you need extra help because you have a disability or a temporary impairment, you should receive extra time. That is fair enough.
	I was inspired to table this Question by a Channel 4 "Despatches" programme, "The Dyslexia Myth". The programme was shown back in September. I watched it purely to gain information as it turned out that I had not been reading the appropriate articles. I scanned through the TV listings and said to myself, "Oh, that looks interesting; I'll watch it". Within about 15 minutes I was so seething with rage that I bounced around the room. My wife sensibly turned the TV off, stuck a video in the recording machine and told me to go for a run.
	The basic synopsis of the programme was that dyslexia did not exist, we had all got it wrong, someone could teach everyone with dyslexia how to read—and that if we could all read, dyslexia did not exist. Professor Julian Elliot—or Joe Elliot as he likes to be known—had come up with this synopsis and was presenting it as fact. The programme backed him up with partial editing. My experience of dyslexia goes totally against that. I can read. I have read well enough to get through a degree course. The problem I have is predominantly with spelling. That is what I find most problematic and I have problems with short-term memory. The professor was talking about a different set of issues. He suggested a phonics-based course. Perhaps the Minister will say what the Government's intentions are in that regard. Apparently, if you teach everyone to read using a phonics system, all problems disappear. It has been estimated that 10 per cent of the population are dyslexic and that 4 per cent are severely dyslexic. Therefore, it would appear that if the phonics-based learning system were adopted, a great swathe of problems would be removed from the education system and the relevant money could be spent on something else. Will the Government confirm that they acknowledge the existence of dyslexia? Do they accept that it is a neurologically based system?
	The definition I have states that dyslexia is an ectopic condition, which means that cells migrate to the wrong place in the brain. As regards both the visual and auditory systems, cells are in the wrong place and misprogramme the relevant information. I shall not go into the rest of the definition as it is very complicated. It was a mistake to try to read it out. Basically, it is a neurological condition. It is real and it is a medical condition. If the Minister will confirm that, he will deal with many of the problems I have. Will he also confirm all the safeguards contained in legislation that has been passed in the nearly 19 years I have been in this House? I made my maiden speech on dyslexia nearly 19 years ago. Ever since then I have believed that governments of whatever political colour accept that dyslexia is a real problem and will enforce laws to protect people with dyslexia. I cannot see any reason why the Minister would not agree that dyslexia is a real problem. I am not so much concerned about myself but about people who are diagnosed with dyslexia late in life. Dyslexia is a disability but dyslexics are not stupid.
	In our society great weight is laid on the ability to read and write as a sign that someone is intelligent. Let us imagine a dyslexic going to a jobcentre to seek support and guidance and the person on the other side of the desk saying, "Dyslexia is not a problem. You can be taught to read. I saw how it was done on the telly the other night". Will the Minister make it absolutely crystal clear that the Government have not changed their mind about the fact that dyslexia is a disability and that the safeguards in, for example, the Disability Discrimination Act still apply? Will he confirm that any government official or person in authority would be breaking the law if he acted in the way that I have described? If the Minister can give that assurance tonight, this debate will achieve a great deal because we can tell people that such behaviour will not be tolerated. We are not prepared to allow people to suddenly say, "I have a new theory about dyslexia. The medical evidence about it is exaggerated". Today the nature of dyslexia is being questioned, who knows what will be the next disability to be questioned? Will it be Asperger's syndrome or dyspraxia? I could go on. Because someone says, "I can deal with this problem", it does not mean that the problem does not exist. If the Minister can give the assurance that I seek, we shall take a step forward and calm certain fears and the anger that arose following the TV programme. I discovered that I was not alone in reacting to the TV programme in the way that I did. A A Gill had a lovely rant in a restaurant review. He wrote:
	"This is a big red-letter day for me. Really. The big red letter might be a B or it might be a D. No matter—I'm cured. A huge weight . . . has been lifted by some very, very clever people who have decided that I'm not dyslexic any more. They didn't even have to see me. It didn't cost me a thing. They just made a documentary and decided that there's no such thing as dyslexia. Free at last, Lord—free at last".
	The article goes on. Noble Lords, who have their words recorded in probably one of the most famous newspapers of the English speaking language, can have a rant about the matter. However, people outside who are applying for jobs and dealing with this problem on a day-to-day basis do not have the defence of raising the matter in Parliament. They cannot call people to help them.
	I promised myself that I would speak briefly about this aspect of the matter and concentrate on the transitional period from school to the adult world and explain how difficult that transition is for many people with disabilities and ask what career guidance is available to them.
	I am running out of time as I speak; indeed, I have gone over it. I ask the Minister for one final assurance: that he will ensure that his department assures all others that they must bear in mind that this problem does not disappear with the classroom or formal situation. Suggesting to somebody that they go back and have extra tuition is not always the answer, because it may be asking them to go back to their own little version of purgatory, if not to hell.

Baroness Morris of Bolton: My Lords, I congratulate the noble Lord, Lord Addington, on securing this short but important debate and, in doing so, declare to the House that I am mildly dyslexic. I do not have too much of a problem with reading. My problems are with writing, spelling and getting my opposites mixed up. Sometimes, when I stand up in your Lordships' House, I wonder quite what I have said.
	I will concentrate my remarks on Meares-Irlen syndrome, a form of perceptual distortion caused by an overactive optic nerve that affects some children and adults with dyslexia. My son was diagnosed with dyslexia at the age of 11, just after he had won an all-round scholarship at school. This was no special pleading by the middle-classes to get their children more time. He was lucky to be at a school which spotted that he had a problem, insisted that we do something about it and was able to offer him the support he needed.
	When he was 14, in a conversation about reading, he casually asked how people stopped the print moving around on the paper. It transpired that, for the whole time he had been reading, the words and spaces had formed patterns and coursed down the page. He went to a specialist optician in York and was prescribed bright turquoise lenses. His reading improved dramatically and he is now, at the age of 22, able to read perfectly well without his coloured lenses.
	On 1 November this year, I was returning to your Lordships' House from a family funeral in the north-west when I heard a fascinating interview on Radio 4's "The Learning Curve". Professor Arnold Wilkins, head of the Visual Perception Unit at the University of Essex, was talking about the very symptoms my son, Jonty, had suffered from. I discovered that Professor Wilkins and Dr Bruce Evans, of the Institute of Optometry, had referred to the symptoms of perceptual distortion and the associated benefit from colour as Meares-Irlen syndrome, in order to give credit to Olive Meares and Helen Irlen, who had made the initial discoveries. The distortion can be helped with coloured overlays, which are sheets of translucent or transparent coloured plastic that can be placed over the page of a book so as to colour the text beneath without interfering with its clarity, or with coloured lenses.
	Fascinating though the Radio 4 programme was, I was deeply concerned to discover that although a number of enlightened teachers are aware of Meares-Irlen, are able to test for it and refer pupils to specialist opticians, it is not recognised by the authorities. I was so concerned that, when I returned, I immediately looked Professor Wilkins up on the "The Learning Curve" website, e-mailed him, and subsequently met him with Dr Evans.
	There is no doubt that there is a high prevalence of visual stress among dyslexics. However, many sufferers of visual stress are not dyslexic. I have seen with my own eyes how the use of colour can vastly improve reading and writing skills. So why, I ask, is it not recognised by the authorities? There have been some detractors in the past, but there is now a good deal of scientific evidence to support the existence of Meares-Irlen syndrome. The main stumbling block would seem to be that it does not fit neatly into the remit of one government department.
	In talks with the DfES, everything is fine when the discussion is about helping with reading or speeding up reading through the use of coloured overlays. When the discussion moves to coloured lenses, however, it becomes a health issue. For those children who are helped with colour, lenses are more practical than overlays, because they can be used for work with computers, and help with reading from blackboards and whiteboards. Incidentally, whiteboards are themselves causing visual stress, because the light shines straight back into the children's eyes.
	The Department of Health, on the other hand, thinks it is a DfES problem, because it involves difficulty with reading, although coloured filters also help with eye strain and headaches. This leaves parents with no option but to buy the lenses themselves. If ever there was a case for joined-up government, this is it.
	Having spoken to Arnold Wilkins and Bruce Evans, read the masses of papers, watched a video and read Arnold Wilkins's book Reading Through Colour, I am left in no doubt that this is an issue which has to be addressed. We are all only too familiar with the problems caused in later life by learning disabilities. It will probably not surprise anybody in this House to know that it was found that many prison inmates, when they were tested, would have benefited hugely from coloured overlays or lenses.
	I am sure the Minister would find that the treatment of visual stress with special filters would be cost-effective. I wonder, therefore, whether he would consider a properly costed and evaluated regional trial of filters to assess the practical aspects of provision.
	If the Minister is in any doubt, I would like to end by telling Sam's story, from Reading Through Colour:
	"'My name is Sam———. I am now 14 years and 4 months old. This is my story. 'All my life I have been unable to see clear text. 'This is normal for me. 'I thought that everybody else saw the same thing as me. 'I had to memorise everything I wrote instead of going back and re-reading it. 'This was because I couldn't read my writing either. 'Nobody asked me if I had trouble reading or writing. 'I was kept in at playtimes and told to do lines. 'The older I got the harder writing became because I had to write more and more. 'I could not cope with the amount of writing. 'I felt let down and stupid because I couldn't do all the work that everyone else was doing so easily. 'I gave up. I didn't know how to do the things that other people could do. I didn't know why. 'I was always exhausted when I came home from school. 'I often had headaches. 'This kept on happening to me until I had an eye exam that changed my life. 'I was due for an eye examination and went to see a new optician. 'My mum told him that I was dyslexic and the optician offered a coloured overlay test. 'That test changed my life. 'I would never be the same again. 'The coloured overlay test came out positive!!! 'It was the most important moment of my life. 'For the first time in my life I could see text clear as glass. 'I was astounded. 'I looked at the page stunned. 'All I could think to say was 'How did it do that?'. 'It was not easy to use the overlays because they made my headaches worse. 'Once I got my lenses the headaches disappeared. 'My life has been a lot easier because of them. 'Now my mum cannot stop me reading. 'I have become addicted to it. 'From being a person who refused to read I now plead with mum to take me to the library every weekend. 'I now feel happier and my self-confidence has increased.".

Lord Laird: My Lords, I thank the noble Lord, Lord Addington, for facilitating this debate tonight. The noble Lord has been a tireless campaigner for many disabled groups and, in particular, those who are dyslexic.
	I join the noble Lord in deploring the confusion caused within the educational fraternity by the recent "Dispatches" programme. The programme ventured into an area where most reputable academics believe that there is a serious issue of the collection, marshalling and reusing of information in a visual or auditory way. The reality is that many people, including myself, have suffered in a very real way from being dyslexic.
	I will take one recent example of a sad but true story. The focus is on David from the Midlands, a self-made small businessman in his mid-fifties. David had specific learning difficulties but, like many other people with dyslexia, his profile showed an extreme disparity of strengths and weaknesses. David was an able craftsman. He always preferred to deal with cash because he found the complexities of modern trading extremely difficult. A short letter from the bank challenged his ability to comprehend the written word. He could read the letter, but understanding the information was the issue. For example, he was totally threatened by forms from the Inland Revenue.
	David lived with his parents, who provided the secure framework which allowed him to develop his strengths. He relied on them to support him with those aspects of life he found challenging. Last year his mother died, and subsequently his father became hospitalised. Those firm rocks that provided David's security were gone.
	For the first time David was managing alone. Agencies moved in to support David but withdrew because they found someone they deemed to be "normal" and whom they believed was able to cope. But David was in despair in so far as he was unable to make others understand how impossible he was finding life. He was completely threatened by society's demands and overwhelmed by his inability to cope by himself—to maintain his business and, most of all, to deal with his absolute fear of having to cope alone. But no one understood.
	David's self-esteem was draining away. When he had support and understanding he was able to contribute usefully to society, but he had never had an adequate assessment of his learning difficulties and it was apparent that the agencies did not begin to understand what these were. On Saturday week past, David chose to take his own life because he had been driven to absolute despair.
	Dyslexia is not just about reading difficulties; it is about processing and multitasking and managing all the complicated things the 21st century demands. Key 4 Learning has been for the past 10 years one of the leading organisations that assist people with processing differences in the work place. Jo Todd of Key 4 Learning, said that,
	"more and more we are asked to intervene and help those who are going through a crisis in the work place—those just unable to cope on a day by day basis—frequently to the point where they begin to suffer from stress or depression".
	The purpose of that organisation is not about helping to cure dyslexia but instead about bridging the gap between those with processing difficulties and those who function normally in the world of the majority.
	We who are dyslexic just do things differently, once empowered by others' understanding of that fact. The focus has to be on our ability not our inability. People with processing difficulties do have talents, but these do not necessarily conform to the typical work-based appraisal boxes into which employees are supposed to fit. This can inhibit expectations, both at recruitment and in respect of promotion within organisations.
	We have a long way to go to get society and organisations to perceive, to understand, how they can benefit from trying to accommodate the complexities of those whose thought processes are different. People with processing difficulties either drop out of society or, as did David and as I did, choose to have their own businesses. The Government are keen for people to stay in employment until they are older, and we who are dyslexic want to retain our dignity despite our difficulties and to contribute to society; but as we become older, dyslexia can make what others find natural and straightforward quite daunting.
	There are many more problems for adults with dyslexia that has not been assessed during childhood than there are currently among children, but there is little research on dyslexia and ageing. I urge the Government to understand that this is not so straightforward for people with processing differences. I also urge the Government to promote better understanding of processing differences across all the supporting agencies. If that had been the case, then David may not have been afraid to live. If David had had the opportunity of a trained advocate to take him through the complexities of all the agencies, he would have been able to continue with his life and his business as he did when his parents were there to guide him.
	Perhaps society's difficulties with dyslexia will be managed better if it is assessed and catered for in childhood. Recently, in her promotion of dyslexia awareness in Northern Ireland, one of our tireless workers and chairperson of an important dyslexic group, Dyslexia Awareness Raising Together, Ann Gallagher from Derrygonnelly in Fermanagh, said that the three most important policies for society and for government bodies in coping with dyslexia were awareness, awareness, awareness.
	I agree with Ann Gallagher and I hope to lead a deputation, including Ann, to meet Angela Smith MP, the Northern Ireland Minister for education, on this issue. I acknowledge that the Government are moving in the right direction, but much slower than many of us would like. While progress is being made, I look forward to the Minister telling us how the matter can be expedited.

Baroness Northover: My Lords, I am here at the express instruction of my elder son. I thank my noble friend Lord Addington for this debate and congratulate him on overcoming the difficulties of his own dyslexia.
	I sometimes think that it is a historical accident that can put dyslexics at a disadvantage today. Prior to universal education, I have no doubt that my strong and determined son would have flourished. Looking to a possibly very high-tech future, will his descendants need to plough through books, fill in forms, and read instructions? Maybe not.
	I remember extremely well trying to help my son Tom to read. His primary school focused on "look and say", but Tom looked not at the word but at the ceiling to figure it out. Building complex Lego machines, solving spatial problems, or whatever, was easy. Recognising a word from one page to another was something else entirely.
	Tom is my eldest child. I later found how differently his younger brother and sister learnt to read, which is why I know that dyslexia exists. But I had no experience to tell me that what Tom was doing was unusual. I could not remember how I learnt to read. I thought that, like riding a bike, he must eventually get it, but that "getting it" must somehow be counterintuitive. By the time Tom was six, 10 years ago, he had drawn up detailed plans for his escape from his primary school. He was going to dig a tunnel in the playground and escape into the churchyard.
	At the same time I learnt that each day his teacher was tearing up his work and throwing it at him. Now in many ways I owe that teacher quite a debt. Tom wanted me to mention her here, and I will. I will not name her, though we came to call her "the witch". I later learnt that she would hit him when he got things wrong. I knew that he was no angel, but tearing up his work did not seem quite right and I went into the school. The head heard that I had come in, pulled Tom out to assess him, and called me in. I heard the word "dyslexia" and as she said it, things began to fall into place.
	The head told me that it would probably take a number of years to get Tom statemented in Haringey, where we lived, and that when she did get help for him it would probably not be from a specialist. In his interest, she said, would we consider moving him to a private sector school with a dyslexia unit? She introduced me to the local dyslexia association, which was at that time struggling to get the child of a single mother from Tottenham into a special school, with Haringey Council tripping them up at every stage—including asking that the long-absent father fill in the forms. I saw that, chickened out, and looked at private schools. Highgate turned up its nose—it did not want to know about Tom, although later its junior school took a more enlightened view in relation to other dyslexic kids, although far less than its senior school still does.
	Tom was accepted at Mill Hill. There, a guardian angel appeared, although I am not sure that Tom saw her quite that way, because she gave him and me huge amounts of homework throughout the term and even throughout the holidays. But she took him back to square one and slowly, using phonics, taught him what I thought was impossible—to read and write. When Tom was about nine he gave me a letter he had written in school. I had been given letters by the other two schools by that stage. He pointed out that this was the first letter that he had written from beginning to end. When he had tried to write one at his infants' school, he would start, but not recognise the next day what he had written, or his teacher would tear it up and he would endlessly start again.
	Things have not been easy, even in a school which was supposed to be fully informed and alert to the way that dyslexics learn. Some teachers insisted on Tom laboriously copying things out of books and then had no understanding of him when he would skip or repeat chunks without realising it. Another—a science teacher—noted that he did not finish writing up his work and was therefore always behind. She took him aside at the end of lessons and got him to dictate to her what he wished to write. She wrote it down for him so that the lesson was complete—his words but her assistance, and my gratitude.
	Then there was the National Listening Library—now Listening Books. At first, we received enormous tapes to go into an enormous machine, but it was a joy. Tom would lie in bed, transfixed, as someone read him a story that he might never be able to read. Over time, the tapes became ones that you could play in a normal machine or in the car. He listened to everything, and still does. I remember him, at the age of seven or so, listening to Lorna Doone. I switched off the tape from time to time to explain the language, but I did not need to. He was John Ridd, and the language in no way impeded his understanding. If I wanted silence amid the general commotion of home, putting on a story tape instantly immobilised all the kids.
	Tom has now done his GCSEs and is in the first year of the sixth form. He seems to be on course for university, but I never count chickens. Exams are very unpredictable things. I look at one of Tom's GCSE results in history, where he got an A* in one paper and a C in the other, and I am as certain as I can be that something went very wrong. What did he misread so that probably, for a whole section of that paper, they could give him no marks at all?
	Tom has become absolutely determined as he has battled through. He would like to be another Richard Branson, and that would certainly be very nice. He promises to buy me a villa in France if he becomes one. Tom has been labouring through school as though he had a great weight to pull behind him—something that his brother and sister do not have to do. But he has been helped, supported, chivvied and encouraged. What of kids who are not?
	Attitudes towards dyslexia in schools, government and local authorities seem to have changed beyond all measure in the past 10 years. But I want to know the reality. I want to know what the Government are now doing to prioritise and fund specialist teacher training and, above all, specialist support in schools. That was the problem a decade ago before local education authorities had the responsibility properly to look after dyslexic kids. I hear that in some areas the situation is little better.
	In what proportion of schools is there routine assessment of children before the age of five and before dyslexia starts to dent their confidence so that any problems can be picked up? And what happens when they are identified? The Dyslexia Institute reports that in a recent TES poll 90 per cent of teachers think that, where possible—and I agree—dyslexic pupils should remain in the mainstream, but only 12 per cent think that they have the resources and training to support them there.
	It is not simply a matter of having a specialist teacher. There has to be a far wider understanding among all teachers of the problems that children may face in reading and writing. Catching the problem early is obviously crucial. I hate to think what would have happened had we not been able to get Tom the assistance that he needed as he planned his infant escapes.
	I hope that the Government are now beginning to take in hand the needs of other kids like Tom because, in my experience, dyslexia can make a person or break him. We, as a society, have to ensure that what Tom describes as his "learning difference" can be the making and not the breaking of those whose brains may simply be wired differently.

Baroness Walmsley: My Lords, I, too, thank my noble friend Lord Addington for introducing what has so far been a very inspiring debate. Tom, David, Sam, Jonty, all noble Lords who have spoken this evening and I need no convincing that dyslexia is real, and it manifests itself through a spectrum of effects varying in severity from mild to very serious. Those with the condition process information differently from the rest of us and we need to take that into account at the earliest possible stage of their education to enable them to fulfil their full potential. From a conversation with Tom, the son of my noble friend Lady Northover, I am aware that, even when dyslexia is correctly diagnosed and appropriate interventions put in place, dyslexic pupils often have to work very hard indeed to compensate for their condition in the world of school and work. The one benefit therefore, according to him, is that you become used to hard work, and that is not a bad thing.
	The sad fact, however, is that, even though it is a fairly common condition, with 10 per cent of the population showing it to some degree, often the condition goes undiagnosed for far too long. The child therefore underachieves and develops low self-esteem. That can lead to disruptive behaviour or even exclusion from school and, in the worst case scenario, to offending behaviour. We know that dyslexics are up to four times more likely to be in prison or on probation than non-dyslexics. Figures from the DfES of June this year show that 64 per cent of children permanently excluded from school have special needs and at least 80 per cent of those—that is, about 5,000 children—have dyslexia. NFER has calculated that it costs almost £50 million to support these children outside the school system each year. Would it not be better to address their needs early instead of having to spend that money on picking up the pieces?
	Their low achievement in basic skills, coupled with low self-esteem, makes it hard for many children to develop their strengths and to be successful later in the workplace. However, we know that many of them are extremely creative and can be highly successful entrepreneurs.
	So what can we do about it? First, we need to fund the correct and early diagnosis of dyslexia in primary and even nursery schools. Teachers should be trained to recognise the problem and teach the child in a different way. It is a learning difference. They also need to be able to recognise where more expert intervention than they are able to provide is needed, and know where to find it.
	Secondly, we need to ensure that all those who struggle with literacy receive appropriate support from trained people. Synthetic phonics is not a magic bullet but it is a valuable technique among a spectrum of techniques. The key is to assess the learning style of the child and to enable him to learn in the way that is best for him. That may vary from child to child, which is why I am so wary about the imposition from on high by the Secretary of State of any single system of teaching reading. That undermines the teacher's professional judgment and understanding of the child.
	Thirdly, we need to support the development of appropriate technologies, such as voice recognition, as the child's learning in other subjects should not be held up by his inability to read very well. We need to stop trapping learners at the level of their disability by insisting on them mastering the basics before they can learn anything else. If a child manages to make it to university, things improve a lot because he can fund the necessary technology through the disabled student's allowance. But why do we have to wait until a talented and persistent few get that far? We need to do it for the many, not just for the few.
	Sadly, schools appear to avoid diagnosing dyslexia for fear of the financial implications of support. That indicates to me that the funding should follow the child as of right and not impose on the school's always-stretched budget. However, failing to diagnose and deal with the problem is far costlier to society as a whole in terms of failed education and the cost of managing crime. Incidentally, it has been shown that developing a dyslexia-friendly school benefits all learners and not just those with the condition.
	Initial teacher training needs to be changed urgently if Every Child Matters is to be seen as more than just rhetoric. The absence of sufficient dyslexia and SEN tuition within ITT has been a cause for concern for many years. Often, parents will choose to send their children to independent specialist schools to get the smaller class sizes and specialist teaching that can be found there. While there are benefits in this, the child then loses out on the other benefits of inclusion in the mainstream. In a recent TES poll, 90 per cent of teachers thought that children with dyslexia should be taught in the mainstream, but only 12 per cent felt that they had the resources and training to do it properly. But it does not have to be like this, if the Government will only invest a modest amount in the short term in order to achieve long-term benefits and, indeed, savings.
	The British Dyslexia Association has accredited courses for professionals working in the field of dyslexia and other specific learning difficulties. However, 65 per cent of teachers attending those courses have to fund themselves, and we do not know how many more are put off taking the courses at all because of the cost. The Dyslexia Institute estimates that with an investment of £27 million in training and teaching for primary schools, no child would be left behind and many problems would be avoided. When you consider the £50 million savings on children who are excluded, which I mentioned earlier, and the Dyslexia Institute's estimate that undiagnosed dyslexia costs the economy £1 billion every year, let alone the costs that could be avoided in the prison system, it seems amazing that the Government are not jumping at the chance of spending a tiny proportion of that—£27 million—as a good investment. Perhaps Minster would like to explain why the Government would rather spend £1.6 billion on the Skills for Life Programme of adult literacy and numeracy in the four years to 2006, rather than invest in getting it right when children are young. It strikes me as a good sound commercial investment to make, even putting aside all the frustration and heartache caused to sufferers and their families when the problem goes undiagnosed and untreated, and it would be cruel to ignore the effects of that.
	Finally, I am attracted by the social model of disability that recognises that the problem is created by the expectations of the world rather than any feature of the individual. A person in a wheelchair is not trapped at the bottom of the stairs by his inability to walk up them, but by the existence of the stairs themselves. Similarly, a dyslexic person is not prevented from succeeding by his dyslexia, but by the requirement to learn to read in a particular way before he can succeed at other aspects of education for which he may have a great facility. Most people with this condition can learn to read and function perfectly well if they are taught in the appropriate way and given appropriate technological help. We have seen many inspiring examples of that. We need to move urgently to investment in more inclusive learning and equal opportunities. That is what it is about. Equal opportunities for children with this difference will enable more people with dyslexia to succeed.

Baroness Buscombe: My Lords, I thank the noble Lord, Lord Addington, for asking this Question this evening. It has been a wonderful debate, albeit short, which will focus minds on the further action needed to make equal citizenship a reality for everyone. The noble Lord, Lord Addington, was right to point out that some negative attitudes have emerged recently. I have to confess that, with regard to exams, I have heard pupils and parents snipe, in the noble Lord's word, about the so-called advantages of being dyslexic. That is a great pity, and I hope that we have helped to nip it in the bud tonight.
	I have to confess that I did not know much about dyslexia until I was well briefed by the Dyslexia Institute and the Disability Rights Commission for this evening's debate. In some ways, I feel rather superfluous to this debate because I cannot speak with the depth of experience and passion of other noble Lords. I am grateful to them for educating me and making me realise how lucky I, my husband and my children are that we do not have this difficulty and lifelong challenge.
	I realised that dyslexia was quite common, but I had not realised that it affects so many people: 10 per cent of the population, and some 400,000 children in primary school alone. If dyslexia is not identified and supported early, children become disaffected and frustrated, and are at risk of school and employment failure. There is evidence from Ofsted, the Audit Commission and other independent reports that the system is not identifying or supporting many children with dyslexia. Children are falling between the cracks of mainstream education and the cumbersome special needs system. Wave 3 of the National Primary Strategy has not succeeded for many children with specific learning difficulties.
	Inclusion will not work if such children are not supported. As the noble Baroness, Lady Northover, said, in a recent TES poll 90 per cent of class teachers thought that children with dyslexia should be taught in the mainstream, but only 12 per cent thought that they had the resources and training to do so. Therefore, too many children arrive in the first year of secondary education without the literary skills to access the curriculum, and so they are much more likely to be excluded from school. There are too few teachers trained to identify and support dyslexic children. The Government do not prioritise or fund specialist teacher training. Indeed, 65 per cent of teachers on our post-graduate diploma course on dyslexia and literacy are self-funded. There are no standards or framework for provision, resulting in a postcode lottery. Dyslexia is the most common issue to go before the tribunal.
	To assist children who have dyslexia, schools and local authorities are expected to have regard to the special educational needs code of practice, which was published in November 2001. It gives practical advice on carrying out statutory duties to identify, assess and make suitable provision for children with SEN. However, the precise arrangements for screening and assessment are for local determination. Under the National Primary Strategy, the Department for Education and Skills produced an extensive range of specific guidance material for schools on evidence-based interventions for children with significant literacy and numeracy difficulties. A three-way model of intervention was developed that was designed to identify and support children experiencing difficulty in literacy and/or mathematics. A good many of them are likely to fall somewhere on the dyslexia spectrum.
	Our now new Leader of the Conservative Party, David Cameron MP, in his former role as shadow Secretary of State for Education recently called on the Government to deliver on their pre-election promises and launch a full review of SEN facilities and provision in England and Wales. Special educational needs can take many forms, including dyslexia, behavioural problems or a mental or physical disability. Labour's mini-manifesto promised a national audit of special school provision to give better comparative information to local authorities, head teachers and school governors as they plan future special needs provision to meet their local needs. That just has not happened.
	Are there solutions? Yes, there are, including what David Cameron has called for. But early intervention also begins with a good systematic phonics programme for the teaching of reading. We very much welcome the interim report from Jim Rose. I am very proud of my colleague, Nick Gibb MP, who has been so tenacious in pushing for the profile of phonics to be raised within the school curriculum. Maybe it is not the panacea for all, but we are glad that the report contains so much positive information for synthetic phonics.
	There needs to be a whole school awareness programme about dyslexia, good leadership and school management, and the training of one learning support assistant in each primary school on a level 3 course in dyslexia and literacy, so that they can support those who need extra help. One should remember that dyslexia is more than difficulties in reading. As we have heard this evening, short-term memory problems, information processing and difficulties with organisation and maths are also signs.
	What about adults and that transitional phase referred to this evening by the noble Lord, Lord Addington? Adults with dyslexia are over-represented in all areas of disadvantage. The majority were not identified at school and have not received appropriate support. The Government estimate that poor skills can cost the economy £10 billion each year. The Dyslexia Institute estimates that undiagnosed dyslexia costs the economy around £1 billion per annum. Without literacy skills and other issues related to dyslexia, there are real difficulties with employment. Dyslexics are over-represented in the offending population—something which we will be referring to in tomorrow's debate on prison education. That is not because they have a greater propensity to crime, but due to lack of early support. Recent research shows that 20 per cent of the prison population has hidden disabilities—twice as many as we would expect in the average population. It costs £186 million to keep the extra 10 per cent of dyslexic prisoners in the secure estate. With early intervention, this is preventable. Adults with dyslexia often have very low self-esteem—as we have heard this evening particularly from the noble Lord, Lord Laird—due to their life experiences. Once their dyslexia is recognised, they often need counselling as well as identification and teaching help.
	There are solutions. The new tendering process for prison and probation education must ensure that enough funding is available for additional learning support for dyslexic prisoners. Staff in offender education need appropriate skills and training. Staff in further education and adult and community learning must be trained to be aware of the warning signs of a specific learning difficulty and be able to offer good resources and teaching. Government staff dealing with the long-term unemployed must ensure that they are all screened, appropriately taught and helped into suitable employment. Employers must take heed of their responsibilities under the Disability Discrimination Act and consultancy should be available for employers and staff. Work-based learning providers need to have staff trained to identify and support. The role of the voluntary sector should be enhanced in supporting these vulnerable learners. In conclusion, some key actions need to be taken by government to address continuing discrimination against and exclusion of people with dyslexia.
	I want to touch on an issue other noble Lords have raised. I refer to the focus on "the right to read". For some 1 million people with severe dyslexia the right to read is all too often a right denied, and the time has come for action. Without equal access to the same books and published materials as everyone else, people with dyslexia will continue to experience educational, social and workplace exclusion. Solutions are at hand and action is now needed.
	I hope that the Minister will have heard from all who have spoken in the debate of the urgency for more action and taken on board the issue raised by my noble friend Lady Morris of Bolton regarding the use of colour, which can vastly improve reading and writing skills—again something I had not realised until this evening's debate.

Lord Adonis: My Lords, the noble Lord, Lord Addington, and almost every other speaker in this debate has spoken with great personal or family knowledge and commitment on the important issue of dyslexia. We have therefore had both a highly informed and, at times, extremely passionate discussion on the subject. In many ways, I think that the most passionate contribution came from the noble Baroness, Lady Morris, about Meares-Irlen. I listened very carefully to what she said and I think that my best response to her is to say that I will study her remarks with care; I will take them up with my colleagues in the Department of Health; I will write to her fully; and I will happily arrange a meeting either with me or with an appropriate Minister to discuss the issue more fully.
	The noble Lord, Lord Addington, expressed serious concern about the controversy raised about the nature of dyslexia, including whether it exists at all, following the recent Channel 4 "Dispatches" programme. The very title of that programme, "The Dyslexia Myth", gave rise to understandable anxiety that children's needs might no longer be recognised and supported. As the noble Lord said, it is important that we reassure parents that that is not the case.
	I begin by stating clearly and categorically the Government's view that dyslexia is a complex neurological condition and that people with dyslexia need proper support to develop the reading, writing and comprehension skills essential to succeeding in school, in life and in work. An authoritative report on dyslexia by the British Psychological Society in 1999 contained a helpful definition that many felt allowed professionals to move on from unproductive arguments of the kind that have surfaced again in recent months. The society defined dyslexia in the following terms:
	"Dyslexia is evident when accurate fluent word reading and or spelling develops incompletely or with great difficulty. This focuses on literacy learning at the 'word level' and implies that the problem is severe and persistent despite appropriate learning opportunities. It provides the basis for a staged process of assessment through teaching".
	The Government accept that definition and it is precisely such a staged process that we have introduced to our primary school national strategy. I will return to that later, as it is crucial to our policy for addressing dyslexia, but let me first address the issue of statutory support for those with serious learning difficulties, including dyslexia, throughout the age range. I will then address wider provision for adults and, finally, wider provision for children.
	Statutory support for all children with special educational needs, including those with dyslexia, is provided by the special educational needs statutory framework. Any child who is not making adequate progress should have their needs identified and addressed throughout the graduated response encompassing School Action, School Action Plus and, where the child's needs are over and above what is normally available in schools, through a statement of special educational needs. The special educational needs code of practice defines adequate progress in a number of ways. For instance, it may be progress that closes the attainment gap between the pupil and the pupil's peers; the progress necessary to prevent the attainment gap growing wider; or, in cases where pupils are, by the nature of their incapacity, on an entirely different learning trajectory from their peers, the progress that matches or betters their previous rate of progress.
	Many adults with dyslexia will meet the Disability Discrimination Act definition of a disabled person and will therefore be covered by the Act. The Act aims to protect disabled people against discrimination in a wide range of areas, including employment. Last October, we removed the exemption for small employers and brought a whole range of previously excluded occupations within the scope of the Act's employment provisions. Those changes brought 1 million employers and 7 million more jobs within the scope of the DDA.
	Recent research suggests that there has been a reduction in negative attitudes towards the employment of disabled people and an increase in making adjustments for disabled people, but there is still work to be done. We have just launched a further campaign to raise awareness among small businesses, in particular, of their duties under the DDA. That campaign builds on the findings of our earlier research, and will benefit many adults with dyslexia.
	That takes me to the wider issue of provision for adults, so powerfully set out by the noble Lord, Lord Laird. To support older learners, the DfES Skills for Life unit last year produced a framework for understanding dyslexia as part of the Government's national strategy for improving adult literacy and numeracy skills. That framework provides general information on the nature of dyslexia; a review of theories about dyslexia; and an overview of approaches and programmes used by specialists to support dyslexic learners.
	The framework gives a good deal of practical guidance on, for example, programmes used by specialists, including the Fast Forward language programme, the Arrow programme and others. It was produced by the Learning and Skills Development Agency, working with a consortium of dyslexia organisations, including the Dyslexia Institute, as part of a project to develop provision for adult teaching and learning and for English speakers of another language. Those programmes have been designed to meet needs across a range of settings in further education and adult and community settings, with additional focus on offender and workplace settings.
	In this context, we recognise that a high proportion of offenders suffer from dyslexia and severe literacy difficulties, as has been mentioned by several noble Lords. We have significantly increased resources for prison and young offender institution education. The budget for that has risen from £57 million to £100 million since 1991 and that extra provision is focused especially on essential skills. I am glad that the House will have the opportunity to debate prison education further tomorrow, when my noble friend Lady Scotland will yet again be performing in the House.
	The third area is support for children. The starting point, beyond the crucial work of parents, is the school and its approach to the teaching of literacy. Our primary national strategy advocates systematic and targeted intervention for any child who experiences reading difficulties. It is based on the premise that for the majority of pupils reading difficulties are most effectively tackled by a whole school approach that emphasises a systematic and planned curriculum response to diverse needs and secures three waves of provision, as set out by the noble Baroness, Lady Buscombe: first, rigorous and systematic attention to the teaching of phonics and spelling rules; secondly, further literacy support for those falling behind; and, thirdly, differentiated curriculum provision with more personalised interventions for small groups or individuals who are still experiencing difficulties, which could include children with dyslexia.
	In that third wave, independent research by Greg Brooks, entitled What Works for Children with Literacy Difficulties?, recommends intervention that has evidence of impact. The primary national strategy uses that research as the basis for its list of interventions. Reading intervention, such as the Cumbrian programme that featured in the Channel 4 programme, is included in the Brooks research. We therefore recommend its use. It is, however, for local authorities and schools to decide which approaches they use in their local area and other programmes have been found to have a comparable effect. We encourage parents of dyslexic children to discuss with their schools the approaches used in their area and what is best for their children.
	Specifically on dyslexia, the primary national strategy has recently updated its advice to teachers in its publication Learning and Teaching for Dyslexic Children, which is closely linked to advice from the British Dyslexia Association and is available as a CD-ROM. It advocates an early intervention approach, using teacher assessment of the strengths and learning styles of individual children, identified in the context of the classroom and the curriculum. A learner's needs can be met through adapting learning objectives, providing better ways of reading and assessing the written work—for example, through ICT or even, as appropriate, a scribe—and adapting teaching styles to the needs of the individual pupil, including visual, oral and touch methods.
	The needs of children with significant literacy difficulties are also being addressed through the Rose review. Jim Rose has looked at best practice in the early teaching of reading, which includes a focus on phonics but is not exclusively limited to phonics. As the House knows, Mr Rose's interim report was published last week and it focused particularly on teaching methods in mainstream settings. However, the range of provision that will best support children with significant literacy difficulties, including dyslexia, is a specific element of Mr Rose's remit. As he states in his interim report, two key aspects of successful additional support are to ensure that,
	"it is compatible with mainstream practice, irrespective of whether it is taught in regular class settings or elsewhere",
	and that, if done separately,
	"the gains made by children are sustained once they return to mainstream work".
	Jim Rose will consider and report on the issue more fully in his final report, expected early next year.
	One programme of additional support that we are taking forward is reading recovery. Through our "Every Child a Reader" project, the Department for Education and Skills, in partnership with the KPMG Foundation and a coalition of charitable and corporate funders, is supporting a £10 million three-year project that will bring tailored literacy support to more than 4,000 children who experience significant difficulties in literacy, through the provision of trained reading-recovery teachers. Not only is the project designed to improve the life chances of those 4,000 children but it will explore the potential for reading recovery teachers to support wider literacy teaching within a school and test out a range of different delivery models for the provision of intensive support to those children who need additional help in literacy.
	Reading recovery has been found to be particularly successful with vulnerable groups, including, for example, low-attaining children, some of whom will have dyslexia. We see reading intervention programmes such as the Cumbrian approach as complementary to reading recovery and we will look at how we can take them forward further after Jim Rose has reported finally.
	Vital to ensuring the best possible provision for children with dyslexia is the proper training of teachers, not only in teaching reading to those with special needs but also in effectively screening for those needs as early as possible. The Training and Development Agency for Schools is taking steps to help teachers, particularly newly qualified teachers, to be better prepared to support the full range of SEN and disabilities. In particular, it is developing specialist SEN elements in initial teacher training, which involves the development of modular pilot programmes within teacher education in respect of pupils with the full range of SEN and disabilities.
	The Training and Development Agency also offers additional placements in special schools, increasing from one to four weeks the amount of time primary and secondary trainees on a three-year or four-year teacher education programme spend in special schools or settings. The TDA is also producing guidance materials and exemplars of good practice for NQTs and is strengthening SEN expertise among existing teachers.
	However, we believe that we can and should do more. In recent months, the Secretary of State, I, and our officials have met leading voluntary sector organisations, which do outstanding work with people with dyslexia—the Dyslexia Institute, the British Dyslexia Association, Xtraordinary People and the Helen Arkell Centre. We have heard from them where they think that we should best focus additional efforts. With Kate Griggs from Xtraordinary People, I recently visited Lyndhurst Primary School in Southwark and saw at first hand its magnificent work on improving outcomes for children with dyslexia and complex processing and reading difficulties. Lyndhurst School is part of a cluster of schools and houses a specially resourced unit for those with severe reading difficulties—the sort of unit mentioned by the noble Baroness, Lady Northover. As part of this, the school has expert staff who can work with children with complex reading difficulties, including those with dyslexia as well as those struggling more generally with literacy. It offers access to specialist therapies, in particular speech and language therapy and occupational therapy, and provides an outreach service for other schools in Southwark.
	This model and the dyslexia-friendly schools model developed by the BDA are precisely the kind of initiatives that we would like to see extended more widely. I have been in discussions with stakeholders about how we could extend such provision. Early next year I hope to outline firm proposals. Finally, I thank all noble Lords for their contributions to this debate and for their support in the mission, which we all share, to give people with dyslexia the best possible opportunities to achieve their full potential.

Terrorism Bill

House again in Committee on Clause 3.

Lord Goodhart: moved Amendment No. 62:
	Page 6, line 17, leave out "capable of being" and insert "likely to be"

Lord Goodhart: This is the last of the group of amendments to be moved by me on Clause 3. It concerns the definition in Clause 3(8) of how one defines a statement which is "unlawfully terrorism related". Under the Bill, a statement is "terrorism-related" if it is capable of being understood as the encouragement of terrorism. Surely, that is not a stiff enough test. It should be raised to be something that is "likely to be" understood or even "would be" understood. All sorts of statements are capable of being understood as encouragement, but many are unlikely in practice to be so understood in normal circumstances or by people likely to receive the statement.
	This test triggers the power to serve a notice under subsection (2). To satisfy the Human Rights Act, measures of restricting freedom of expression, which Clause 3 clearly does, must be prescribed by law and be necessary in a democratic society. In Clause 3, we have an amazingly broad definition of terrorism-related material, which is applied on the basis of the subjective decision of a constable that the material is terrorism-related. The material is then sent to the Internet service provider, who has little interest in challenging the notice. Without the amendments in this group, it is impossible to say that the test meets the standard of being prescribed by law. It is arbitrary and in breach of Article 12 of the Council of Europe convention. It goes far beyond what is necessary in a democratic society. In those circumstances, I beg to move.

Baroness Scotland of Asthal: I am grateful to the noble Lord for tabling Amendments Nos. 62 and 64. Like Amendments Nos. 59 and 61, they seek to amend the repeat statement provisions we have already discussed in part. They would remove the reference to "capable of being" understood and replace it with "likely to be" understood. The "likely to be" understood formulation proposed in the amendment mirrors Clause 1.
	I understand why the amendments have been tabled, but Clauses 1 and 3 are two distinct parts of the Bill. The difference in the current drafting is designed to reflect that. In Clause 1, a statement must have been made to an audience. The court is then required to make an assessment of whether the audience to whom the statement was made is likely to understand that statement as an encouragement. In Clause 3, however, a different assessment is made. The police have to make an assessment of whether a statement made available to many people via the Internet is capable of being understood by certain persons as an encouragement. The difference is that in Clause 1 we know the audience, while in Clause 3 the police do not specifically know who the audience to whom the statement is being made is, and of those potential people, whether they are likely to be so encouraged. The amendments would limit unduly the ability of the constable to issue a notice.
	Currently, it may well be that in issuing the notice, the constable is aware that the statement is unlikely to encourage others to terrorist acts because it has, for example, been posted on a website run for the benefit of children's education. However, he may be concerned that the statement is such that certain people, if they were to see it, might understand it as such an encouragement and that, in serving the notice, he may make the web host aware of it so that it can be taken down. This assessment is not one of whether persons are likely to understand it as such an encouragement, but where it is capable of being so understood.
	The consequence of the amendment would be to prevent the constable issuing a notice in the circumstances I have just outlined. He would issue a notice only where he could reasonably make out that such a statement existed and there were persons viewing that statement who would understand it as an encouragement. That would limit unnecessarily the utility of this clause.
	In anticipating the argument against that—what if the constable does not get the judgment right, which has been put in the past; what if the statement appeared in such a place or in such a way that those viewing it were not likely to understand it as such an encouragement, even though it was possible to see that other people in the world might consider it as such an encouragement and the notice was still used—there would be two options. The web host, on looking at the material in question, might choose to take it down anyway. Alternatively, the web host might leave it up if he was confident that it was not a statement that people viewing his website would take to be encouraging either because of its nature or because of the nature of his website. The amendments do not allow for that possibility and limit the utility of the notice issuing provisions to no clear benefit.
	For the reasons I have set out, I hope that the noble Lord will be content to withdraw the amendment.

Lord Goodhart: I may be content to withdraw the amendment, but I am not content with the answer given by the Minister. The distinction between Clause 1 and Clause 3 seems wholly unrealistic. There are all sorts of circumstances, particularly under the provisions of Clause 1, where someone makes a public statement at, let us say, a public meeting. The person making the statement will have no idea who is in the audience. They may be completely unknown to him. I can see no difference in that respect between Clause 1 and Clause 3.
	In Clause 3, the difference between our formulation and that of the Government is that if we stick to the government formulation instead of ours it will be possible for the police to serve a notice calling on the web host to withdraw a message where that message is capable of being understood—but is not likely to be understood—by its recipients as encouraging terrorism. If it is likely to be understood it would be caught by our formulation. I find it extraordinary that, by refusing to accept our formulation, the Government will end up in a situation which will allow the police to take measures to withdraw from a website material which is capable of being understood as encouraging terrorism—as is all sorts of material—but is not likely to be understood in that sense.
	The Government ought seriously to reconsider this issue. While I will ask the leave of the Committee to withdraw the amendment today it is very likely that it is one to which we will return. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 63 to 69 not moved.]
	Clause 3 agreed to.
	Clause 4 [Giving of notices under s.3]:

Lord Cameron of Lochbroom: moved Amendment No. 70:
	Page 6, line 42, leave out paragraph (b).

Lord Cameron of Lochbroom: In moving Amendment No. 70, I shall speak also to Amendments Nos. 71 to 73, which are in my name in the group.
	The amendments are suggested by the Law Society of Scotland and concern the giving and reception of a notice under Clause 3. These are obviously important steps as service of a notice has all the consequences set out in Clause 3(3). First, it identifies that which is unlawfully terrorism-related; secondly, it requires the relevant matter to be withdrawn or modified; thirdly, it gives the warning of the consequence of failure to comply with the notice within two working days; and, fourthly, it explains how, even if the person has complied, that person may subsequently become liable if the relevant matter becomes available to the public. That means that certain defences may no longer be open to an accused by whom a notice has been received in a subsequent prosecution for an offence under Clause 3. That offence carries with it the very serious penalties which can be imposed on conviction under Clause 2(10).
	Given the importance of such a notice and the seriousness of the consequences, it is suggested that these amendments are required, particularly in relation to individuals, unincorporated companies and the like. The amendments require that service be restricted to personal service in every case; recorded delivery is insufficient. This is particularly important as recorded delivery could be effected without the knowledge of the individual concerned. For instance, under Clause 4(1), a notice may simply be sent to his last known address and not served upon him personally. Equally, so far as a body corporate or a firm is concerned, or indeed an unincorporated body of association—these being the bodies mentioned in subsections (2), (3) and (4)—it is conceivable that recorded delivery could be received, for instance, by some very minor employee of those bodies, wholly without the knowledge of those who would be concerned to see that appropriate steps are taken to avoid the consequences which flow from the provisions of Clause 3. It is obviously intended that the serving of the notice should give time for steps to be taken to rectify what is perceived to be the problem. It is suggested, and these amendments are tabled for that purpose, that in a matter of such importance as this, there should be personal service and that the matter should not simply depend on a postal service.
	I am conscious that if the amendments were to find approval with the Committee, it would be necessary also to make a consequential amendment to Clause 4(7). I beg to move.

Lord Bassam of Brighton: I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his amendment because it enables me to explain Clause 4 in greater detail. As has already been explained, Clause 3 does not create a new offence or give the police the power to remove material from websites. Rather, it provides a means by which the police can serve notices on those who host information on websites requiring them to remove or modify statements which the police reasonably believe encourage terrorism or are useful in the commission or preparation of terrorist activity.
	Under Clauses 1 and 2, which create the offences of encouragement to terrorism and dissemination of terrorist publications respectively, a person who provides an electronic device such as a website host has a defence to the offences in those clauses if he can show, among other things, that a statement or publication did not express his views and did not have his endorsement. It is an element also of the defence in Clause 2(8), which applies whether or not a person is providing or using an electronic service, that the matter in the publication did not have the defendant's endorsement.
	The effect of Clause 3 is to deem a person providing an electronic service to have endorsed a statement if he has received a notice under Clause 3 and has failed to comply with it. If the person is accused of an offence under Clause 1 or 2, the effect of Clause 3 is that he cannot take advantage of the defence of non-endorsement in Clauses 1 and/or 2. These notices require that the person on whom the notice is served ensures that the information is not available to the public within two working days of receipt of the notice. Previously, the text referred only to "days", but the Government changed it to "working days" to make it clear that people who receive these notices should not be penalised if they fail to respond over weekends. Clause 3 does not create any new offences; rather, it provides that if a person fails to comply with a notice which has been served, he will no longer be able to argue that material on a website does not have his endorsement and therefore will not be able to take advantage of the defences in Clause 1(5) and Clause 2(8) or (9).
	Clause 4, to which the noble and learned Lord's amendment relates, sets out the method by which a notice may be served. It simply provides that a notice may either be served in person to the individual to whom it relates or may be served by recorded post or delivery. The use of the postal service in the serving of a notice is not a new provision. It is an accepted fact that the postal service is a trustworthy means of transmitting legal documents and notices. I remind the Committee that all sorts of legal documents, from summonses and notifications of legal duties such as jury service right through to electoral polling cards, are delivered safely by post.
	The amendments would remove the possibility that the police may issue a notice under Clause 3 by recorded post, which would create a disparity between serving a notice under this Bill and other notice-serving provisions that exist. It would also significantly reduce the flexibility of such a system, and could foreseeably increase the cost of doing so, requiring that a constable is sent on lengthy trips to serve a notice that could far more efficiently and cost-effectively be delivered by recorded post.
	I contend that these amendments could create an illogical disparity between notices served under Clause 3 and any important legal notices served under other legislation. There appears no logical reason for restricting the issue of notices in that way, and precedent stands against it. So on those terms, I suggest that the noble and learned Lord withdraws his amendment.

Lord Cameron of Lochbroom: I am grateful to the Minister for giving that explanation, but I am not entirely content with it. This is all to do with trying to prevent material being published on the Internet, so it is important that steps should be taken as soon as possible. It appears to me, with respect to what has been said in reply to these amendments, that the best way of securing that that is done quickly and efficiently is to get the notice delivered to the persons who can take the steps as soon as possible to bring the transmission to a halt. Those are the persons who are named as individuals in the clause—the secretary of a body corporate in subsection (2), the partner of a firm in subsection (3) and a member of the governing body of an unincorporated body or association in subsection (4).
	I shall study the reply, but I hope that the Government do not look unfavourably on what I have said. These are not just the ordinary notices that are given to acquaint somebody of something by way of recorded delivery; it has a much more proper purpose, which is to bring the risk of such transmissions to an end and to inform the responsible persons of the possibility that they are about to transmit, or are transmitting, unlawfully terrorism-related articles, records or statements. In view of the reply, I am content at this stage to look again at what has been said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 71 to 73 not moved.]
	Clause 4 agreed to.

Lord Goodhart: moved Amendment No. 74:
	After Clause 4, insert the following new clause—
	"DEFENCES
	(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (3) it is a defence for a person charged with an offence to prove a particular matter.
	(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
	(3) The provisions in respect of which subsection (2) applies are sections 1(7), 2(8) and (9) and 3(5)."

Lord Goodhart: Amendment No. 74 is very important. Its purpose is to ensure that special defences under Clauses 1 to 3 of the Bill require an evidential burden of proof only and not a full burden of proof. That is a second best to putting an intention test into Clause 2, in which case this amendment would be unnecessary. Without either of these, we are in very deep water.
	In general, when a defendant is required to prove something as a defence, he has to prove it on the balance of probabilities. Sometimes, however, the standard of proof can be reduced so that all the defendant has to do is show that there is an arguable issue. If so, the burden then switches back to the prosecution to disprove beyond reasonable doubt the claim raised by the defendant, and that is what is known as an evidential burden.
	There is an important precedent for this in Section 118 of the Terrorism Act 2000. In the case of that Act, the Government accepted that there should be an evidential burden in several cases. They introduced what is now Section 118 in Committee in your Lordships' House.
	Section 118 covers a number of offences under the Act. Section 12 makes it an offence for someone to arrange a meeting that he knows is to be addressed by a person who belongs to a proscribed organisation. Under Section 12(4), it is a defence for the defendant to prove that he had no reasonable cause to believe that the speaker would support the proscribed organisation or its activities. The maximum penalty for a breach of Section 12 is 10 years, so this is obviously regarded as a serious offence.
	Under Section 39 it is an offence to carry out acts likely to threaten a terrorist investigation. Under Section 39(5) it is a defence if the defendant did not know, and had no reasonable cause to suspect, that his acts were likely to affect a terrorist investigation. The maximum sentence for that is five years—again, a serious offence.
	Under Section 54 there is an offence of providing or receiving weapons training. It is a defence to that for the defendant to prove that the action was wholly for a purpose other than terrorism. That section carries a 10-year sentence. Section 57 makes it an offence to possess a terrorist article. It is a defence to prove that possession was not for a purpose connected with terrorism. The maximum sentence is 10 years. Section 58 makes it an offence to collect information of a kind likely to be useful to terrorists. It is a defence that the defendant had a reasonable excuse for collecting that information. The maximum sentence is 10 years. There are similar provisions in Sections 77 and 103 of the Terrorism Act and in Northern Ireland legislation.
	Amendment No. 74 applies the same principle to defences under this Bill. The first offence is under Clause 1(7). Following the Government's acceptance that offences under Clause 1 should be limited to cases of intentional subjective recklessness, I believe that Clause 1(7) is now otiose—as I said yesterday, though the Minister did not accept it—and I will discuss that no further. The remaining defences are those under Clause 2(8) and (9) and Clause 3(5).
	Clause 2 covers dissemination of terrorist publications, an offence that requires no intent. Clause 2(8) provides a defence that the defendant had not read the publication and had no reasonable grounds to suspect it was a terrorist publication—which, incidentally, is an objective test; it is not open to the defendant to say that he was blind to what was going on—and the defendant must also prove that it did not have his endorsement.
	Clause 2(9) provides a defence that the publication did not express the defendant's views or have his endorsement. Clause 3(5) is somewhat more complicated in its operation, and I will not try to explain it in detail, but it raises the same principle. Let me try to analyse what that principle is.
	First, in the absence of an intention test in Clause 2, and subject to the specific defences in subsections (8) and (9), the offence of disseminating a terrorist publication can be committed by someone who does not know that what he is handling is a terrorist publication. Secondly, the risk is increased by the extreme width of the definition of terrorist publication and by the fact that whether any publication is a terrorist publication depends not only on its content but on the context in which it is disseminated and on the mental effect it is likely to have on the recipients rather than on the actual intention of the defendant. Thirdly, the offence carries a heavy penalty, a maximum of seven years' imprisonment. When you get into that category of case, it is I believe plain that people should be convicted of such offences only if they have a full mens rea.
	The fourth aspect of the principle is that there are some circumstances, and I agree that the Terrorism Act 2000 was one, in which it is legitimate to require a defendant to explain his motives or actions rather than allow him simply to rely on silence. For example, someone who receives weapons training cannot under Section 54 of the Terrorism Act 2000 say, "You have to prove that I was there for a terrorist purpose". He has to provide an innocent explanation for his presence. But—the fifth point—if he produces an explanation that is not implausible, then under Section 118 it becomes the duty of the prosecution to disprove that explanation beyond reasonable doubt. If the burden of proof remains on the defendant to prove that explanation, there is a real risk of wrongful conviction, and more frequently people will be deterred by the risk of prosecution from disseminating legitimate information.
	That is what we on these Benches fought for and obtained in the debates on the Terrorism Act 2000. That Act is an exact precedent for this Bill. The Government could of course avoid this problem entirely by accepting the intention requirement for Clause 2. But if they insist that they will not do that, I believe that they must at the very least accept that the burden of proof in special defences should be no more than an evidential burden of proof. If the Government will not accept either of those, then I believe they will face a real risk of wrongful convictions and the certainty of a chilling effect on legitimate discussion of issues relating to terrorism. It is more than likely that it will be held ultimately that this Bill is incompatible with the Human Rights Act. Why is it necessary in a democratic society that people should have to prove their innocence? I beg to move.

Lord Kingsland: The names of myself and my noble friend Lord Henley are appended to this amendment, which we also regard as extremely important. The noble Lord, Lord Goodhart, has said everything that needs to be said about it, so I shall be extremely telegraphic in my support. I simply want to emphasise two features to which the noble Lord himself gave great emphasis.
	First, it would be inconsistent if the Bill adopted a different approach to the evidential burden from that in the Terrorism Act 2000. After all, the definition of terrorism that runs through this Bill like a spine is the definition adopted in the Terrorism Act 2000. It must flow from that that the Government's approach in the Bill should be consistent with that Act. Secondly, as the noble Lord, Lord Goodhart, also said, the offences in Clauses 1 and 2, if proved by the prosecution in a trial, attract very heavy penalties. Our submission, like that of the noble Lord, is that, in those circumstances, the full mens rea of an offence should be required.

Lord Elton: I am very much in favour of the provision because it appears to me that its first two subsections answer exactly my concerns about the difficulty of rebutting a charge that one had endorsed something.

Baroness Scotland of Asthal: I am grateful to the noble Lord for tabling the amendment because it gives me the opportunity to bring a number of the different issues that we have been debating together. I hope that I can explain how the Bill is crafted so as to meet the concerns which noble Lords have indicated. I, of course, congratulate the noble Lord, Lord Kingsland, on his usual telegraphic delivery.
	As we have discussed extensively, Clause 1 creates an offence of encouragement to terrorism. Under this clause it will be an offence for a person to publish, or cause another to publish on his behalf, a statement when either they intend that it should be understood as an encouragement to terrorism or where they are reckless as to whether or not it is likely to be so understood.
	Clause 2 creates the offence of dissemination of terrorist publications. An individual is considered to have committed an offence if they disseminate a publication containing material that is likely to be understood either as direct or indirect encouragement to terrorism, or as information wholly or mainly intended to be of assistance in the commission or preparation of terrorist acts to those to whom it is likely to become available through such conduct. In deciding whether a publication amounts to a terrorist publication, the court must take into account the context of its dissemination at the time of that conduct, and the contents of the publication as a whole. I am putting that into context because it is important for us to see how the offences operate so that we can better understand why the defences provide the safeguards that we need. The provision that the court must take into account the context of the publication's dissemination at the time of the conduct which may amount to an offence is very important because it ensures that those engaging in innocent pursuits will not be caught by the offence. So this new clause relates to the statutory defence under Clause 1, the two defences under Clause 2 and the provisions relating to repeat statements in Clause 3.
	It is a defence for a person charged under Clause 1 to show that he published the statement in respect of which he is charged or caused it to be published only in the course of provision or use by him of a service electronically, and that the statement neither expressed his views nor had his endorsement, and that it was clear in all the circumstances that it did not express his view nor had his endorsement. We have talked about the amendments that we propose to lay in due course in that regard. The defence is intended to provide protection for those providing an electronic service. Electronic services such as the Internet are, as we have discussed, a fast-moving medium. This, combined with the nature of websites such as those on which the public can post messages, often means that a person may not be aware of the content of their service. We have agreed all of that already. The defence in Clause 2(9) is similar to the defence in Clause 1(7). I hear what the noble Lord, Lord Goodhart, says—that Clause 1(7) is no longer necessary, and we have discussed why we disagree about that. It is a defence for a person charged under Clause 2 to show that he engaged in the conduct falling within Clause 2(1)—the dissemination of terrorist publications—only in the course of provision or use by him of a service electronically, that the statement so far as it encouraged terrorism neither expressed his view nor had his endorsement, that it was clear in all the circumstances that it did not express his view nor have his endorsement and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful.
	Under Clause 8, it is also a defence for a person prosecuted under Clause 2 to show that they had not examined the publication in respect of which they had been charged; that they had no reasonable grounds for suspecting that it was a terrorist publication; and that the matters contained in the publication did not have their endorsement. This defence provides an important safeguard to ensure that those unaware of the content of the matter they are disseminating are not wrongfully prosecuted.
	Clause 3 provides the power for a constable to issue a notice. We have discussed that clause at great length. A person who receives such a notice must ensure the offending material is no longer available to the public within two working days. If he fails without reasonable excuse to comply with the notice, he will be deemed to endorse it.
	Those defences provide that a person who receives a notice under Clause 3 will be responsible for repeat statements—statements that are the same as the one to which the original notice related—unless he can show that he had taken reasonable steps. That is so necessary because things can be taken down from the Internet in minutes, but they can be put back up in minutes, too. You could have a situation where things are taken off and put back on with great rapidity. The effect of this new clause would be to place only an evidential burden on the defendant. In other words, the defendant would only have to adduce sufficient evidence to put a defence or Clause 3(5) in issue for the prosecution to have to prove beyond reasonable doubt that the defence was not made out.
	There are significant differences from the evidential clauses under the 2000 Act, and these. Whether or not the burden of proof should be placed on the defendant is always a difficult issue. In the case that a burden is placed on the defendant, it must be assessed to ensure that it does not breach Article 6 of the ECHR, which guarantees the right to a fair trial. It is proper and fair for the defendant to bear the burden in these circumstances.
	Placing the burden on the defence is fair and reasonable for a number of reasons. First, endorsement is not an element of either defence. Therefore they are aimed at an exception to the offence. Secondly, whether or not a person endorsed a statement, or it expressed his view, is a matter within his particular knowledge. Whether a person examined a publication, or intended it to be useful to terrorists, is also within his particular knowledge. Finally, the defendant is best placed to bring forward evidence of how he runs his electronic service and show that material on it did not have his endorsement. For example, the defendant will be able to bring evidence of disclaimers, the amount of material on the service, and whether material is subject to editorial or sifting processes. All those issues will be peculiarly and particularly within the defendant's knowledge.
	Placing a burden on the defence, in Clause 3(5), is also fair and reasonable for a number of reasons. First, the steps a person took to prevent repeat statements appearing are within his particular knowledge. Secondly, the process whereby a person becomes liable for repeat statements is a fair one. The reversal of the burden in any particular offence is not a small matter. It is not novel, however. The noble Lord, Lord Goodhart, has already acknowledged that. Section 18 of the Terrorism Act 2000, which Parliament passed only five years ago, creates the offence of money laundering of terrorist property, and provides that the defendant prove that he did not know, and no reasonable cause to suspect, that terrorist property was involved. That is a similar provision to those before us today. It will still be required for the prosecution to prove that a statement was published, or a publication was disseminated, much in the same way that Section 18 of the Terrorism Act requires the prosecution to prove that the facilitation of money laundering has taken place.
	In the case of Section 18 of the Terrorism Act, the prosecution must prove that property involved in the conduct was terrorist property. In much the same way, the prosecution will have to prove that a statement or publication was either encouraging terrorism or, in the case of a publication, wholly or mainly of the purpose of being of use to terrorists. The defendant is best placed to prove whether he did or did not endorse a publication and to make that clear in all the circumstances; and to prove that he did not endorse a publication on the balance of probabilities is not, if I may say respectfully, an onerous or difficult undertaking if he truly did not endorse it. However, it is a significant undertaking for the prosecution, to whom the facts will not be readily available. So accepting the amendment would make the defences to the offences of encouragement to terrorism and dissemination of terrorist publications too easy to establish.
	It is important that we create effective offences that are capable of prosecution, otherwise we will not be able to tackle the evil of those who create a climate in which violent acts of terrorism are more likely to occur. We have often discussed the importance and usefulness of law, but if we are to have these offences, they must have some teeth and some utility. It would be futile if we were to produce legislation that would disable us from dealing with some of the pernicious material that is currently being disseminated to our great detriment.
	In conclusion, it is right that I should invite the Committee to consider that Clauses 1 and 2 were extensively debated in the other place. They were voted on more than once and perhaps I may respectfully suggest that we need to look carefully and seriously at these matters in seeking a conclusion. We absolutely understand the concerns that have been expressed and I have indicated the ways in which we intend to deal with them, but the burden placed in relation to these specific offences is appropriate—it is the balance of probabilities, and it is a burden that could be discharged without too much difficulty by those who would face charges of this nature.
	On that basis, I invite noble Lords not to press their amendment. I would go so far as to invite them not to bring them back, but I imagine that I will get a fairly dusty response.

Lord Goodhart: The noble Baroness is right to think that she would get a dusty answer to her request not to bring back these amendments at a later stage.
	The noble Baroness mentioned that some of these matters were within the particular knowledge of the defendant. Indeed, they are; but if one looks at the 2000 Act a number of matters arise. Section 54 regarding the offence of providing or receiving weapons training, states that the defence is for the defendant to show that his action was wholly for purposes other than terrorism. That is a matter that is plainly within the particular knowledge of the defendant, who must know what his purpose was. Regarding Section 57, which relates to the offence of possession of a terrorist article, the defence must prove that possession was not for a purpose connected with terrorism. Again, it must be a matter for the defendant, who has that within his particular knowledge, to say what his purpose was. The advantage to the prosecution is that the defendant cannot rely on the right of silence and must come up with a plausible explanation of what he was doing. But that does not prevent the burden of proof then passing back to the prosecution.
	Let us examine the issues in the Bill. Clause 2(8) states that it is a defence for the defendant to show that he had no "reasonable grounds" for suspecting that what he was disseminating was a terrorist publication. The question of what are reasonable grounds is not wholly within the knowledge of the defendant. Surely, it is a question for the prosecution to establish what a reasonable ground is.
	Clause 2(9) refers to a defendant's expression of views or endorsement. The views of the defendant may be a matter within the knowledge of the defendant, but it seems to me that unless "endorsed" is simply a synonym for what his views are, it should plainly be the responsibility of the prosecution to show whether he has endorsed anything, particularly given that nothing in the Bill tells you what "endorsement" means.
	In Clause 3(5), the defendant must show that he has,
	"taken every step he reasonably could to prevent a repeat statement from becoming available to the public".
	Again, if the defendant says what steps he took, surely it is for the prosecution to prove that those steps were insufficient. Therefore these three subsections all deal with matters where it is plain that the burden should switch back to the prosecution in proving that an offence has been committed.
	I shall not repeat myself, but I regard this as a very important issue and one which is absolutely essential in the absence of a test involving intention in Clause 2, which I would prefer to see. Therefore, it is more than likely that we will seek to bring back this matter on Report. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 5 [Preparation of terrorist acts]:

Lord Cameron of Lochbroom: moved Amendment No. 75:
	Page 8, line 4, after "liable" insert—
	"(a)"

Lord Cameron of Lochbroom: This amendment is grouped with Amendments Nos. 76 to 78. It is a probing amendment to discover the policy considerations for subsection (3), which, as the clause is presently framed, provides in relation to the offence of preparation of terrorist acts that:
	"A person guilty of an offence under this section shall be liable, on conviction on indictment, to imprisonment for life".
	The effect of the amendments in this group would be to cause subsection (3) to read as follows:
	"A person guilty of an offence under this section shall be liable,
	(a) on conviction on indictment, to a term of imprisonment or to a fine or to both;
	(b) on summary conviction in England and Wales to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both;
	(c) a summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both".
	Members of the Committee will observe that that form, which incorporates penalties, first, for the sentence on conviction on indictment and, secondly, for providing for summary proceedings and the appropriate penalties, echoes the provisions, for example, of Clauses 1(8), 2(10), 6(5) and 8(4) of this Bill and provisions of the Terrorism Act 2000—in particular, of Section 54, which relates to weapon training, and Section 57, which concerns possession for terrorist purposes.
	It is important to consider what the offence is. The offence is in these terms in subsection (1):
	"A person commits an offence if, with the intention of—
	(a) committing acts of terrorism, or
	(b) assisting another to commit such acts,
	he engages in any conduct in preparation for giving effect to his intention".
	Therefore, the conduct does not have to be concerned with the preparation for an act of terrorism by the individual himself. It can be committed by one who assists another to commit such acts. Would this offence catch conduct by way of assistance by, for example, providing a safe house for the other from which to proceed to commit an act of terrorism? That is familiar in drug dealing where, for instance, the individual is a wife or some other person who acts under pressure, but not necessarily under duress. Such offending could be looked at as being of lesser criminality than that of the individual who was preparing to commit the act of the terrorism, and would call for a proportionately lower penalty. I invite the Minister to advise me about the policy considerations for Clause 5(3) as presently drafted. It appears to restrict prosecution to proceedings by way of indictment, to provide for a mandatory sentence of life imprisonment, to exclude summary procedure and not to provide for the range of penalties provided in Clauses 1, 2, 6 and 8.
	I should pause to observe that if one looks at Clause 6, which involves training for terrorism, it appears that one is talking about conduct of the order of that in Clause 5. Training for terrorism, for instance, is involved in providing,
	"instruction or training in any of the skills mentioned in subsection (3)".
	The skills included in Clause 6(3)(b) are,
	"the use of any method or technique for doing anything else that is capable of being done for the purposes of terrorism, in connection with the commission or preparation of an act of terrorism or Convention offence or in connection with assisting the commission or preparation by another of such an act or offence".
	Similarly, in Clause 8, which is concerned with attendance at a place used for terrorist training, one finds that the requirements of Clause 8(2) are satisfied in relation to a person if,
	"he knows or believes that instruction or training is being provided there wholly or partly for purposes connected with the commission or preparation of acts of terrorism or Convention offences".
	Clause 8(3) sets out that it is immaterial,
	"whether the person concerned receives the instruction or training himself"
	and,
	"whether the instruction or training is provided for purposes connected with one or more particular acts of terrorism or Convention offences . . . generally".
	As I pointed out, in Clauses 6 and 8, there is provision for a range of penalties from lengthy terms of imprisonment down to fines on summary procedure.
	For the assistance of the Committee, I should perhaps indicate that I have tabled further amendments that relate to similar provisions in Clauses 9, 10, 11 and 14. It might be of assistance to the Committee if, in response, the Minister could give some indication of how these matters stand as regards penal policy for those four clauses. That might assist me in deciding what to do about those amendments when we come to them. I beg to move.

Lord Bassam of Brighton: I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for tabling the amendments and for providing us with the opportunity to discuss a clause that we might not otherwise have got around to.
	Clause 5 provides for the new offence of acts preparatory to terrorism. This offence has been supported by all political parties. The offence is intended to facilitate the prosecution of individuals known to have been planning or preparing to carry out a terrorist act. The offence has two elements: first, a person does an act preparatory to committing or assisting others to commit one or more acts; and, secondly, that the act is done with the intent of committing or assisting others to commit such acts.
	We believe that we should not underestimate the seriousness of the activity we are trying to capture. It includes those making home-made explosives with the intention of using that material to kill. It captures those who are conducting surveillance of United Kingdom government buildings or embassies with the intention to kill or harm those who serve the Crown. In those terms, it would not cover the example that the noble and learned Lord gave of providing accommodation. Those supportive activities to acts of terrorism might well fall within Section 38B of the Terrorism Act 2000, as it was inserted by the Anti-Terrorism, Crime and Security Act 2001.
	It has been made clear in debates on this Bill that we are confronting a terrorism that is markedly different from that which we faced in the past. Its goal is to inflict casualties without regard to human life, including that of the terrorist. This means that our law enforcement agencies have to intervene much earlier. They can no longer afford to let a carefully planned conspiracy run in order to gather the most evidence possible. The risk to the public is too great. This offence responds directly to that. The new offence will allow the police to intervene in cases where it is clear that there is intent to carry out a serious terrorist attack, even through the details of the attack may not be known in absolute detail. Indeed, the terrorists themselves may not at that point have decided how best to conduct their attack. The terrorists may be carrying out preliminary research for several different types of terrorist attack with a view to carrying out whichever turns out to be the most promising.
	It may be very difficult to prosecute for a specific offence because it will not be possible to establish beyond reasonable doubt that the terrorists intended to use explosives, as that was only one of a number of options at the time. That is where acts preparatory will be useful. But of course it does not mean that we should not underestimate the seriousness of the level of conduct we may be dealing with.
	The consequence of these amendments is twofold. First, it allows for a person to be convicted summarily; and, secondly, it removes certainty from the proposed sentencing framework. The clause as currently drafted does not allow for summary conviction. This represents the serious nature of the conduct we are attempting to capture. If someone is participating in a form of conduct because it aids his intention to carry out a terrorist act, that is in our view a very serious matter. We cannot see how summary conviction for such conduct would reflect the severity of such activity. The amendments also change the current drafting on penalties for conviction on indictment.

Lord Thomas of Gresford: Perhaps I may interrupt the Minister for a moment to ask him whether I understood him correctly when he said that the amendment of the noble and learned Lord, Lord Cameron, would introduce uncertainty into subsection (3). Is he suggesting that this is a mandatory sentence of life imprisonment?

Lord Bassam of Brighton: Of course I was not suggesting that. It would depend on the seriousness of the nature of the offence.
	To pick up where I was, in particular, it would create an offence with no specified maximum term of imprisonment, which we consider wholly inappropriate in the circumstances. In the recent past, it has been customary for us to specify a maximum, as that creates a greater degree of certainty. We do not see a reason to abandon that degree of certainty which for serious offences, especially terrorist offences, is vital in sentencing, as I am sure we would all agree.
	The amendment would also allow for the possibility of a fine to be imposed following conviction on indictment. Again, we do not think that that is acceptable in the light of the seriousness of the offence. I conclude that we are not sure what the amendment is designed to achieve. I am sure that it cannot be designed to allow a judge to sentence someone for making ricin at home in their bathtub for either two or 90 years. We seek consistency; we also seek certainty. Although I appreciate the point made by the noble and learned Lord that the amendments were probing on policy, we cannot support them on their terms. I hope that the noble and learned Lord will feel confident in withdrawing his amendment.

Lord Cameron of Lochbroom: Can the Minister help me a little? Clause 6(2) provides for the person committing an offence if,
	"at the time of the instruction or training"—
	in the skills mentioned in subsection (3), which, I observe, include noxious substances and the like—
	"he intends to use the skills in which he is being instructed or trained . . . for or in connection with the commission or preparation of acts of terrorism . . . or . . . for assisting the commission or preparation by others of such acts or offences".
	I simply pause to observe that that could well be regarded as an act preparatory to terrorist acts, but, as I said, the provision in the clause is for the range of sentence to permit recognition of various different degrees of culpability. That was the point that I was trying to make by introducing the amendments. With respect to the Minister, he has not really considered whether there is not a considerable range of culpability in the form of the offence created by Clause 5, especially as it mentions "any conduct". It is not specific. In that sense, it may be much wider than what is in Clauses 9, 10, 11 and, indeed, 13, in so far as that creates an increased sentence for an offence under the Terrorism Act 2000.

Lord Bassam of Brighton: I appreciate the point that the noble and learned Lord is making; he has made it very effectively. I can see that there may be circumstances in which one could directly relate training to acts preparatory to terrorism, but our argument is that Clause 5 goes wider to cover all acts preparatory to the ultimate commission of an act of terrorist outrage. I am happy to reflect on the link between the two before Report, but I think it is that on which we rest our case.

Lord Cameron of Lochbroom: I am grateful to the Minister for that reply; time for reflection on both parts would be helpful in these matters, as in others. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 76 to 78 not moved.]
	Clause 5 agreed to.
	Clause 6 [Training for terrorism]:

Lord Lyell: If Amendment No. 79 were accepted, I could not call Amendment No. 80, due to pre-emption.

Baroness Scotland of Asthal: moved Amendment No. 79:
	Page 8, line 10, leave out "or suspects"

Baroness Scotland of Asthal: I shall speak also to Amendments Nos. 80 and 82, tabled by the Liberal Democrats, and Amendment No. 81, from Her Majesty's Loyal Opposition.

Lord Goodhart: Perhaps I may speed up matters by saying that, in view of government Amendment No. 79, we do not intend to move or speak to Amendments Nos. 80 or 82.

Lord Kingsland: In view of the government amendment, we do not intend to speak to, or advance, Amendment No. 81.

Baroness Scotland of Asthal: I appreciate wholeheartedly such total generosity. Our Chief Whip is almost overwhelmed with gratitude.
	It is a requirement of the Council of Europe Convention on the Prevention of Terrorism, of which the UK is a signatory, to criminalise terrorist training. As noble Lords may be aware, a number of those offences are already contained in British law: in Section 54 of the Terrorism Act 2000, which pertains to weapons training among other things. Clause 6 supplements Section 54 to close the existing gap of any other form of training for terrorist purposes. That includes training for use of noxious or hazardous substances, providing training in certain skills, methods and techniques where you know or suspect that a person receiving that training is doing so to use them for the purposes of terrorism, or the receiving of any of that training with the intention to use it for terrorist purposes.
	On Second Reading, a number of noble Lords expressed concern about the effect of Clause 6 on legitimate academic study and teaching. As I mentioned at the conclusion of the Second Reading debate, among the representations that we have received on the matter were those from the very august Royal Society of Chemistry, which I thank for its numerous conversations with us and letters. As I made clear, the Government have never intended to curtail or stifle legitimate academic activity or teaching. I am grateful to those noble Lords who acknowledged that they did not believe it was the Government's intention either.
	It is my sincere belief that legitimate academic study would not be criminalised by the Bill in its current formulation. I said that earlier today but, in view of some of the other comments made, I think that we should note it again. Nevertheless, we want to set everyone's mind at rest. I am therefore delighted to move Amendment No. 79 and even more delighted that everybody seems now to agree that it is the right thing to do. Unless noble Lords would like me to go on for considerably longer, I beg to move.

Lord Goodhart: We had tabled a couple of amendments in this group. I have what is so far in this debate the unique pleasure of unequivocally welcoming a government amendment. It seems to meet the problem. As I understand it, it is fully acceptable to the AUT and Universities UK.

Baroness Williams of Crosby: Being of a less kindly disposition than my noble friend, I wish to ask the noble Baroness whether she can assure us that Amendment No. 79 would catch cases where such rare experiments with noxious gases take place outside the realm of a formal academic situation? I am thinking of health and safety provisions within the gas industry and industries of that kind.

Baroness Scotland of Asthal: I can assure the noble Baroness that Amendment No. 79 will catch all legitimate activity not caught by any other legislation. We were very conscious of the concerns raised by noble Lords. The Royal Society of Chemistry made the point quite forcefully, too. We believe that Amendment No. 79 goes further than any of the amendments that had been tabled. The reason is that, having looked at the mischief, we thought that a more comprehensive amendment was needed. We were delighted to go further than anyone had asked us to go because we thought that that was the right thing to do.

Baroness Warwick of Undercliffe: I rise briefly to compliment the Minister on the speed with which she moved the amendment and also to join other Members of the Committee in welcoming it. I warmly commend the Government on moving to address a number of concerns from the academic community, including Universities UK. It was clear from the outset that the fears raised in academic circles were not the Government's intention. Particularly, the Minister has now addressed the reference to suspicion, which was very broad. I am delighted that my noble friend has brought forward this amendment. As far as I can see it solves the problem with the drafting of Clause 6. If the amendment is adopted, the condition for falling foul of this offence will be that the person in question knows that the person receiving training in the skill in question intends to use that skill in connection with terrorism, which is entirely reasonable. I have no hesitation in thanking the Minister again most warmly for bringing forward the amendment, which I shall certainly support.

Baroness Scotland of Asthal: I thank everyone who has thanked me. I will treasure this moment because I believe that it will be rare.

On Question, amendment agreed to.
	[Amendments Nos. 80 to 83 not moved.]
	Clause 6, as amended, agreed to.
	Clause 7 agreed to.
	Clause 8 [Attendance at a place used for terrorist training]:

Lord Cameron of Lochbroom: moved Amendment No. 84:
	Page 10, line 16, at end insert ", or
	(c) having become aware or having formed the belief that instruction or training is being provided there wholly or partly for purposes connected with the commission or preparation of acts of terrorism or Convention offences, he fails to take all reasonable steps to remove himself from that place."

Lord Cameron of Lochbroom: This is one of a number of amendments that are to the same effect. The purpose of this amendment is that the prosecution should establish that a person did not take reasonable steps to remove himself in situations where he became aware that the premises were being used for terrorist training or instruction only after attendance there. Clause 8 creates an offence if a person,
	"attends at any place, whether in the United Kingdom or elsewhere; . . . while . . . instruction or training is provided there; . . . that instruction or training is provided there wholly or partly for purposes connected with the commission or preparation of acts of terrorism or Convention offences; and . . . [the person] knows or believes that instruction or training is being provided there wholly or partly for purposes connected with the commission or preparation of acts of terrorism or Convention offences; or [the person] . . . could not reasonably have failed to understand that instruction or training was being provided there wholly or partly for such purposes".
	No account is taken of the situation in which a person, after arrival at premises, becomes aware that terrorist instruction or training is being provided there and who then takes active steps to disengage him or herself from the situation or is afraid of disassociating him or herself from the group. Apparently, mere attendance at such a place, coupled with the knowledge or belief that such training is being carried out, is sufficient for a crime to be committed.
	It is proper to have an amendment of this kind and to leave the burden on the prosecution to establish that the person did not take reasonable steps to remove himself after becoming aware that the premises were being used for such training or instruction. I beg to move.

Lord Goodhart: We have Amendment No. 85 in this group. We agree with what the noble and learned Lord, Lord Cameron of Lochbroom, said. Clause 8 provides that attendance at a place of training is an offence. The offence is committed if someone knows or believes that training is being provided for terrorist purposes or it was so obvious that any reasonable person would have spotted it. No special defences are available at all. The maximum sentence is 10 years.
	This clause has been considerably, and rightly, criticised. First, it seems that an offence is committed by someone's presence in camp even for an instant after becoming aware that it is a terrorist camp. I doubt whether this is a serious problem because I suspect that a court would be likely to say that the clause must be interpreted to allow a reasonable time for departure. But it is better to avoid the issue by making it clear that no offence is committed if someone leaves as soon as practicable after realising that he is in a terrorist training camp.
	Secondly, some people have raised the possibility that someone might attend the training camp not for terrorist purposes, but perhaps as a journalist wishing to expose what is going on. Amendment No. 85 also covers this and other cases such as that of a woman who attends a camp not in order to receive training, but as a companion to her husband or partner, which again should not be a criminal offence.
	We think it is reasonable to treat these as special defences, but for the reasons explained in relation to Amendment No. 74, the defences should require only an evidential burden.

Baroness Williams of Crosby: It is sometimes said that hard cases make bad law, and here I am concerned about what might happen to someone who was found guilty on the basis indicated by the noble and learned Lord, Lord Cameron; that is, that he or she had, as it were, blundered into such a place and could not show until some little time later that that was the basis on which they had spent some time in the camp before leaving.
	I speak with firsthand experience of this. A few years ago I happened to be in the remoter parts of the Wyoming Wind River mountain range and, to my considerable surprise, found myself on a plateau where a number of gentlemen were bouncing around in 4x4s which were heavily armoured. I was surprised to see this and made an immediate assumption that they were part of the United States Army on a training exercise. It was nothing of the kind. It was a so-called "freedom militia" that would train in the remote areas of the Wind River mountains in order to mount terrorist attacks on the United States Government. Their reasons for doing so were much the same as those that attended the Oklahoma case. Noble Lords will recall that that terrorism was based on an extreme form of libertarianism which resented any kind of federal authority and therefore used terrorist methods more like a form of anarchism than anything to do with al-Qaeda to demonstrate their resistance and dislike of it.
	We should not be so simple-minded that we do not recognise that there can be groups of this kind. They may meet in rather remote places where it would take some time to prove that one had left the area immediately. I believe that the noble and learned Lord, Lord Cameron, has put his finger on a real situation—I repeat, one that I have encountered myself—and that we should be cautious about condemning someone with a maximum penalty of 10 years' imprisonment. They may have made every effort to leave the area as soon as they became aware of what was going on. From my own experience, that could take a couple of hours to prove because one tends to think at first that such a group is engaged in a legitimate mobilisation or military training exercise. One may not know immediately that it is a terrorist training camp.
	I commend the amendment moved by the noble and learned Lord to the Government. They would lose nothing by accepting it; rather they would simply avoid the condemnation of what may be a small number of completely innocent people.

Baroness Scotland of Asthal: I apologise because I was sitting in great comfort thinking that my noble friend Lord Bassam was to reply, but of course I realise that it is for me to respond and I am delighted to do so.
	I am grateful to the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Cameron, for raising this matter. I hope that I shall be able to reassure them that there is little for them to be troubled by. Clause 8 creates the offence of attending a place where terrorist training is taking place, and I am sure that I do not need to explain at any length the rationale for that. Training lies at the heart of successful terrorism and we need to clamp down on the places where such training takes place and on those who attend. The noble Baroness, Lady Williams, gave us a graphic example of how groups meet in the most unlikely of locations. We must not be na-ve about such things; I agree with her about that.
	Concerns have been expressed about the effect of Clause 8 on legitimate investigative journalism. The Government's position on this is clear. Nothing in the clause or the Bill as a whole will hinder in any way the work of legitimate investigative journalists or those who find themselves in the same position as that experienced by the noble Baroness, Lady Williams. She was in the middle of a situation of which she could have no real understanding and discovered subsequently that it was a training camp. She then made every effort to leave immediately.
	Someone in that position, or a journalist who suspects that terrorist training is taking place, can take steps to establish whether there is any foundation for their suspicions. However, at the point when their suspicions are confirmed, the correct course is to leave, as the noble Baroness, Lady Williams, indicated, and, if they are good citizens, to alert the appropriate authorities to what is going on. I do not see how this approach is hindered in any way by the clause. Anyone finding themselves in the situation described by the noble Baroness, once they have established the facts, should leave immediately. The mere fact that they find themselves in that position would not put them in any difficulty.
	The important moment is when they discover or realise that it is a terrorist training camp. Staying thereafter would become a difficulty. Up to that point, when the person does not know, is not sure or may simply suspect, no offence is committed. It is the moment they establish where they are that they must take proper steps to remove themselves. That is particularly true for journalists who find themselves in that situation. Under Clause 8 as currently drafted, there would be nothing to put such a person at risk. Amendment No. 84, in the name of the noble and learned Lord, Lord Cameron, is not necessary.
	Exactly the same argument applies to the first part of Amendment No. 85 in the name of the noble Lord, Lord Goodhart. I will not dwell on it, other than to repeat that the Bill as drafted provides the protection that the noble Lord and the noble and learned Lord seek.
	The second part of Amendment No. 85 provides that a person does not commit an offence if, while at the terrorist training camp, he had no intention of furthering the commission or preparation of acts of terrorism or conventional offences. This would be a significant loophole. I imagine the courts would be faced with a steady stream of people claiming that they were simply observing but not participating. There might be those who would claim that they were just doing the catering or running the crèche. People would certainly argue that they were only at the terrorist training camp to provide humanitarian assistance. The Government's position is clear: no one has any legitimate reason to be at a place where they know terrorists are being trained. It is as simple as that. We should not provide any loopholes which will make prosecutions virtually impossible to secure.
	Amendment No. 86, which again is in the name of the noble and learned Lord, Lord Cameron of Lochbroom, provides an exemption for covert human intelligence sources, drawing on the definition found in the Regulation of Investigatory Powers Act 2000. I understand what the noble and learned Lord is seeking to achieve. However, I invite him to consider the context in which we have dealt with these issues and to accept that the amendment is not necessary. I can assure the noble and learned Lord that Part 2 of the Regulation of Investigatory Powers Act already provides a detailed and effective code for the operation of covert human intelligence sources. Exceptions for the acts of such sources are not included in relation to other criminal offences and we do not intend to begin providing such exceptions in the Bill. On principle, the Government resist giving intelligence and security agencies, and those who act on their behalf, special statutory protections that would place them above the law as it applies to others.
	In the light of the reassurance I have given that those who find themselves in situations similar to the one described by the noble Baroness, Lady Williams, would not be in jeopardy as a result of the way in which the clause is drafted—including investigative journalists trying to discover whether terrorist training is taking place—I hope the noble and learned Lord will feel able to withdraw his amendment.

Lord Cameron of Lochbroom: I am grateful to those who have taken part in this debate and for the support of the noble Baroness, Lady Williams, for my amendment, which would have placed the burden of proof on the prosecution rather than on the defence in proceedings which had already opened. However, I will reflect on what the Minister said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 85 and 86 not moved.]
	Clause 8 agreed to.
	Clause 9 [Making and possession of devices and materials]:

Lord Bassam of Brighton: Will the noble and learned Lord briefly give way while I put a suggestion to him? Amendments Nos. 87, 88, 90, 91, 92, 93, 94 and 95 seem to cover pretty much the same territory. If the noble and learned Lord is prepared to make one speech covering those amendments, I will make one speech in response.

Lord Cameron of Lochbroom: moved Amendment No. 87:
	Page 11, line 5, after "to" insert "a term of"

Lord Cameron of Lochbroom: The Minister forestalled me because I was going to ask leave of the Committee to do so. I have already set out the basis on which these amendments proceed, which is to discover penal policy. The penal provisions appear to restrict prosecution to prosecution by way of indictment and, more particularly, imprisonment to a mandatory life imprisonment. I may have misunderstood the manner in which the penal provision works so far as Clause 9 is concerned. If that is so, I will be happy to withdraw the amendment. I beg to move.

Lord Bassam of Brighton: I am grateful to the noble and learned Lord for his courtesy. I apologise for having interrupted him in the first instance. The amendments are very similar. Their effect would be to move us from the current certainty that, on conviction, a person is liable to life imprisonment, to the rather uncertain position that he is liable to a term of imprisonment, whatever that may be, as determined by the judge. This presumably allows that term to be 12 months, five years, 15 years or 50 years. We would not see that as being acceptable.
	It would be inappropriate to create an offence of this seriousness with no specified maximum for the term of imprisonment. It has been the practice in recent years for a statute to specify a maximum term as it creates a greater degree of certainty. We do not see a reason to depart from or abandon that degree of certainty, especially for serious offences for which sentencing is vital. I invite the noble and learned Lord, with his long experience, to agree with that principle—I am sure that he does. Although we are not entirely sure, we see the amendments as being designed to undermine that principle. We cannot allow for wide fluctuations in sentences from one judge to another. I am sure that the noble and learned Lord will accept that the Bill provides life as a maximum sentence. The sentencing court has the power of course to impose a discretionary life sentence or a lower term of imprisonment as it seems appropriate. This means that judges can make decisions according to the facts of the case, using the high upper limit set by the Bill as a guide. We believe that that is absolutely right—but the amendment allows a variation, with what we view as potentially absurd consequences.
	We argue for consistency and certainty, and in those terms we cannot see the amendments as acceptable. I suspect that the noble and learned Lord will say that the amendments were of a probative nature, and I am sure that that is the case. However, our clauses set out defences relating to very serious matters, and for that reason we believe that our approach is important to achieve consistency in sentencing.

Lord Cameron of Lochbroom: Perhaps the Minister could tell me whether, as presently framed, the provisions mean that on conviction there is a mandatory life imprisonment? Or is he saying that there is a range of sentences available by way of imprisonment that could be less than life imprisonment?

Lord Bassam of Brighton: That is exactly what I am saying.

Lord Cameron of Lochbroom: I am very grateful to the Minister for that assurance. In these circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 88 not moved.]

Lord Elton: moved Amendment No. 89:
	Page 11, line 21, leave out sub-paragraph (iv).

Lord Elton: It is a bit late in the evening to ask the Committee to be indulgent to a non-lawyer, but I have to make that plea. I shall be as brief as I can. In moving Amendment No. 89, I shall speak also to Amendment No. 112.
	The amendment refers to the definition of "radioactive material" in the Bill. The Clause 9 definition of radioactive material starts on page 11 at line 11 and, stripped of its inessentials, it states that,
	"'radioactive material' means nuclear material or any other radioactive substance which . . . contains"—
	various substances, and,
	"is capable, owing to its radiological or fissile properties, of"—
	doing four things, which are listed, the fourth of which is,
	"creating a serious risk to the health or safety of the public".
	Could either Minister follow me through what I regard as the maze leading to what then happens? The definition of the public in Clause 20(3) falls into two parts. The first, in paragraph (a), states that all references to the public are to be construed as,
	"references to the public of any part of the United Kingdom or of a country or territory outside the United Kingdom, or any section of the public".
	That is unqualified and therefore applies to all of Part 1. The second definition is in paragraph (b), which goes on to say that it also includes,
	"references to a meeting or other group of persons which is open to the public (whether unconditionally or on the making of a payment or the satisfaction of other conditions)".
	Unlike the first part of the definition in paragraph (a), that part is qualified by the opening words,
	"except in section 9(4)",
	which is the clause that we are debating.
	The effect appears to be that the possession of radioactive material would not be an offence, even if that material was capable of creating a serious risk to the public assembled in a public meeting, unless it was also capable of doing at least one of the other things set out in Clause 9(4)(b)(i) to (iv). It is difficult to see circumstances in which it could not—in which case, the distinction is otiose; but if it could, it is difficult to see the purpose of the exclusion. All that I am asking is what on earth it means. I beg to move.

Lord Henley: Before the Minister replies, I wish briefly to intervene. First, this is the first time that I have spoken since Second Reading; there will be one or two other moments when I speak again, but I do not intend to delay the Committee, as we are now making some quite good progress. I support my noble friend's amendment and hope that the Minister can give us a good answer. However, in reply, could the Minister also say a little about his intentions—or the intentions of the noble Baroness, Lady Scotland—about how far we should go this evening? I know that we want to get on as far as possible; many of us are interested in debating Amendments Nos. 121 and 122, although we shall obviously not debate them tonight. But it makes sense to discuss how far we shall get tonight, so that we know what we are going to do next Tuesday.

Lord Goodhart: I support what the noble Lord, Lord Henley, has said. We are particularly concerned that if we go ahead with the target of Amendment No. 116, two items that we regard as considerably important will be debated late at night—that is, Amendment No. 105 and Clause 21 stand part. I would have thought it would be inappropriate to go beyond the end of Part 1, because it is clear that at that point we will have plenty of time to finish the debate in one more day. Preferably, we should stop before we get to Amendment No. 105.

Lord Henley: While the Minister is thinking about that, I add one further comment: it is Wednesday evening and we are sitting tomorrow, I believe, at 11 o'clock, which presumably means we cannot go much beyond 11 o'clock tonight. I hope the Minister will be able to confirm that.

Lord Bassam of Brighton: My instructions from our Chief Whip were that we would seek to make rapid progress today—and we have done very well—and that we would endeavour to reach Amendment No. 116. I understand from the noble Lord, Lord Goodhart, that he has concerns about that. Once I have sat down, having dealt with this amendment, I propose to confirm with the Chief Whip the progress we are intending to make, and take what further advice I can on the agreement between the Chief Whips from the other parties. That was my understanding of what was sought to be achieved through the usual channels.
	I would like to deal briefly with the amendment of the noble Lord, Lord Elton. Essentially, I think what the noble Lord is asking is, "Why is Clause 9(4) excluded from the definition of 'public' in Clause 23?". Clause 23 provides a definition of "public" for the purposes of the Bill. However, Clause 23 does not cover the reference to "public" in Clause 9(4), and that is because the word in 9(4) is intended to be interpreted in a much more general sense than elsewhere in the Bill. So, for an offence under Clauses 9, 10 or 11 to be committed, the radioactive material in question must create a risk to the health and safety of the public at large. That is why we have used a different definition in those clauses. The noble Lord might not be satisfied with that explanation, but that is the explanation behind it.

Lord Elton: I am not quite sure I follow why this should be. If someone has a radioactive source sufficient to be a danger to the health and safety of people in, say, the Queen Elizabeth Hall, the Royal Courts of Justice or the House of Commons, why should that not be a grievous terrorist offence even if it was not sufficiently powerful to affect people outside?

Lord Bassam of Brighton: They are both different definitions of "public". They work for the different clauses in different ways. That is the long and short of the explanation. I suggest the noble Lord reflect on what has been said and relate those definitions more precisely to the clause. No doubt, if the noble Lord is not happy with the explanation, he can of course return to this. In the interim I will try and provide him with a rather fuller explanation.

Lord Elton: I should be happy if he would. All he has done is confirm what I thought the meaning was without giving a reason for it. The difficulty would be removed by my pressing my Amendment No. 112 and removing the exemption. I had hoped that he would be able to enlighten me before then. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 9 agreed to.
	Clause 10 [Misuse of devices or material and misuse and damage of facilities]:
	[Amendments Nos. 90 and 91 not moved.]
	Clause 10 agreed to.
	Clause 11 [Terrorist threats relating to devices, materials or facilities]:
	[Amendments Nos. 92 and 93 not moved.]
	Clause 11 agreed to.
	Clauses 12 and 13 agreed to.
	Clause 14 [Maximum penalty for certain offences relating to nuclear material]:
	[Amendments Nos. 94 and 95 not moved.]
	Clause 14 agreed to.
	Clause 15 agreed to.
	Clause 16 [Preparatory hearings in terrorism cases]:

Lord Elton: moved Amendment No. 96:
	Page 16, line 17, after second "in" insert "section 1 of"

Lord Elton: In speaking to Amendment No. 96 I shall speak also to Amendments Nos. 97, 108, 109, 137, 138, 140 and 141. All these amendments embody what to me is a new formulation. It may simply be that I have not been involved in legislation for a while and a new style has developed. However, it seems to me an unsatisfactory style. We are referred to the whole of another Act of Parliament for a meaning and then asked to look at one provision in it, rather than simply being referred to that section as would be normal. What I propose, therefore, is to revert to the normal—saying that the meaning of the term in this Act is the same as in a given section of another Act, and no reference to the rest of the Act to be read through to see if that holds good throughout. I beg to move.

Lord Bassam of Brighton: I certainly applaud the noble Lord, Lord Elton, for his wish that the drafting of legislation should be clear and comprehensible. Nevertheless, I have to disappoint him and tell him that I cannot advise the Committee to accept the amendments. The first reason is that I do not believe there is any ambiguity in the parts of the Bill that the amendments seek to change. They all relate to the definition of terrorism and each relates back to the Terrorism Act 2000. Therefore, all the references concerned are clear on this point and there are helpful pointers to explain which sections of the Act the reader should look at. So I do not believe there can be any confusion.
	Secondly, I am afraid that making these changes would be technically wrong as well. The term "terrorism" is defined for the purposes of the whole of the Terrorism Act 2000, not just Section 1 of that Act as would be the implication of the amendments. The noble Lord will understand that. Section 1 may contain a definition of terrorism, as the words in brackets help to explain, but that definition applies to the whole of the 2000 Act, as it will to the whole of Part 1 of this Act. That is a subtle but important distinction. I think, as I indicated, that the amendments are well intentioned, but perhaps when the noble Lord reflects on them he will understand why we would encourage him not to press them.

Lord Elton: I simply cannot follow the noble Lord in this at all. The whole of the statute book is littered with references to the meaning of a term in one Act of Parliament by reference to a particular section of another without any reference to the rest of the other Acts, although the definition in that second Act does apply to the whole of both Acts. There is no precedence for this that I am aware of. Indeed, it invites the lawyer or the layman reading the Bill to think that he has to read the whole of the Terrorism Act 2000, which I remind the noble Lord is a very considerable piece of legislation with many, many clauses and many, many, many pages. I am not sure that it was not two volumes. It is a very big Act. It says, "That is where you will find the meaning and you should start off by looking at Section 1".
	At this time of night and speaking in my own single piping voice, I shall have to withdraw the amendment. However, I hope that people seriously involved in legislation who either hear this or read this will consider that I am right and persuade the noble Lord on Report that he is wrong. However, in the mean time and with a good grace I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 97 and 98 not moved.]
	Clause 16 agreed to.
	Clause 17 [Commission of offences abroad]:

Lord Kingsland: moved Amendment No. 99:
	Page 16, line 23, at end insert "and
	(c) the action involves harm or the threat of harm to a national of the United Kingdom"

Lord Kingsland: Amendment No 99 would add a new paragraph to Clause 17(1); that is, paragraph (c). The clause concerns the commission of offences abroad. As things stand, persons of any nationality who commit abroad any of the offences stipulated in the Bill will be subject to criminal prosecution if or when they come to this country. The purpose of the amendment is to limit the extra-territorial—I think the expression used in another place was extra-terrestrial—effect of the Bill to those circumstances in which the offence involves,
	"harm or the threat of harm to a national of the United Kingdom".
	I am aware that one of the problems we face in this Bill is that there is no international definition of terrorism; but we nevertheless have to deal with the law as we find it today.
	I suspect that the answer that the Government will give me when I sit down—which I assure the noble Baroness will be quite shortly—is that we all have the protection of the discretion of the Attorney-General; and that the Attorney-General will use his legendary common sense to make sure that prosecutions occur only in appropriate circumstances.
	But the fact of the matter is that the Attorney-General's discretion in this Bill is wholly unconstrained. He can make such judgments as he thinks are expedient in the political circumstances of the time. It is not difficult to see what serious pressures he will sometimes be under. A situation may arise where a regime which is broadly friendly to the United Kingdom, but nevertheless totalitarian and repressive, is plagued by what many people would call "freedom fighters". Some of those freedom fighters may find their way to these shores. As soon as the head of the regime discovers that they are here, there is no doubt that strong representations will be made to the government of the day in the United Kingdom to bring proceedings against the freedom fighters. The Attorney-General, as the Minister responsible, will not be able to escape those pressures.
	To give a completely different example, what about an asylum seeker? What about somebody who has been an opponent of a repressive regime and has said things in the course of his opposition which fall foul of the Bill, but who then comes to the United Kingdom in order to apply for asylum? He would be caught by this provision, unless our amendment is accepted.
	Serious problems can arise if we do not constrain the Clause 17(1) offence in the way we suggest, or some other way that has the same effect. I beg to move.

Lord Goodhart: I support the amendments spoken to by the noble Lord, Lord Kingsland. I have a few concerns about them in detail, because, in the case of certain offences—for example, acts preparatory to terrorism under Clause 5, or providing or receiving training under Clause 6—it may well be that one would want to have some weapon against somebody who subsequently arrived in this country and there was reason to believe that they were here for nefarious purposes.
	However, the principle is right. Of course, it could be that people would be liable to prosecution under Clause 17, at least in theory, even if what they had done had been done many years previously. I accept it could not be retrospective to the enactment of this Bill. It could thereafter, however, go back a long way and expose people to prosecution for acts which had occurred many years ago and had no relevance whatever to their presence in the United Kingdom. So while I am not sure that this is the most appropriate form of words for it to take, it raises an issue requiring serious consideration.

Baroness Scotland of Asthal: Can I clarify something? Initially, the grouping I had indicated that we were going to speak to included Amendments Nos. 99, 99A and 100, Amendments Nos. 99A and 100 being in the name of the noble Lords, Lord Goodhart and Lord Thomas of Gresford; and Amendments Nos. 101 and 102, in the name of the noble Lord, Lord Elton. Am I right in saying that I now have to reply only to Amendment No. 99?

Lord Kingsland: On my sheet—it may be out of date—Amendment No. 99 is on its own; then we have Amendments Nos. 99A and 100; and then we have Amendments Nos. 101 and 102. Perhaps, for the convenience of the Committee, we ought to debate the other two groups, and then the noble Baroness could deal with them altogether. I suspect, however, that that is not procedurally possible.

Baroness Scotland of Asthal: I am grateful for that clarification. The amendments all refer to extra-territorial jurisdiction. I had, therefore, intended to deal with a number of different points.

Lord Goodhart: I am happy to speak to Amendments Nos. 99A and 100, even if this is not strictly in accordance with the proper procedure, so that the noble Baroness can deal with them altogether.

Lord Elton: Has anybody moved a Motion yet?

Lord Kingsland: Yes, I have: Amendment No. 99.

Lord Elton: I am happy to speak to Amendments Nos. 101 and 102, provided that the answer is given separately and distinctly in the speech.

Lord Goodhart: Amendment No. 99A would remove criminal liability for encouragement of terrorism under Clause 1 if it was committed abroad. This does not cover the liability for the offences either of acts preparatory to terrorism under Clause 5 or of giving or receiving training for terrorism under Clause 6.
	Given the width of the definition of terrorism and the width of the concept of encouragement enormous numbers of people would be potentially liable to prosecution under Clause 17 if it extended to the offence under Clause 1. Offences under Clause 2 are not included, because Clause 17 applies only to offences under Clauses 1 or 6. So the dissemination of terrorist material outside the United Kingdom would never come within the scope of prosecution under Clause 17. It is difficult to see the justification for saying that it applies to making a statement under Clause 1 and disseminating that statement under Clause 2, but at present the Bill makes that distinction.
	The effect is that if someone outside the United Kingdom gave encouragement to, say, militants in Kashmir or Chechnya, he could be liable for a crime under Clause 1. That is seriously over-stretching the matter. We are looking at speech crime and, indeed, it comes close to being thought crime—a word invented by a gentleman whose name was Blair, although he wrote under the nom de plume of Orwell. What is described here falls short of incitement to terrorism, and where it has no impact on the United Kingdom it does not seem appropriate to retain a power of prosecution in this country. Apart from anything else, any prosecution would be totally random, because there must be at any given time a large number of people who are potentially liable to prosecution, but the vast majority would never be discovered to have made a statement.
	Providing for a prosecution for encouragement as opposed to incitement of terrorism in the United Kingdom, when the offence has been committed outside the United Kingdom, and which does not relate to encouragement in the United Kingdom, does not serve any useful purpose.

Lord Elton: My Amendment No. 101 is to elicit the reason for treating offences under Sections 3(1)(a) and (b) of the Explosive Substances Act 1883 differently from the offences listed in Clause 17(2) when they are treated as triable in the United Kingdom—I refer your Lordships to Clause 17(5).
	My Amendment No. 102 is, first, to elicit which offences would be caught by the qualification in relation to Scotland; secondly, to ask why it is necessary to define them more strictly than others; and thirdly, to ask what the consequences of that would be.

Baroness Scotland of Asthal: I am grateful for that. I will take the strictures given to me by the noble Lord, Lord Elton, and deal with each of the amendments separately and distinctly so that each noble Lord gets the answer he deserves. I shall have to be careful how I phrase my responses. All the amendments concern extra-territorial jurisdiction. The issues can be divided into two distinct groups, so I shall deal first with the amendment tabled by the noble Lord, Lord Kingsland, then those tabled by the noble Lord, Lord Goodhart, and then those of the noble Lord, Lord Elton.
	Extraterritorial jurisdiction was the subject of extensive debate in the other place. Many Members in the other place argued that the extent of extraterritorial jurisdiction originally in the Bill went too far. As your Lordships know, the Government wish to proceed by consent to the furthest extent possible on the Bill. Therefore, we sought to respond to the concerns expressed at that time. Accordingly, the Government brought forward amendments in another place, and the extent of extraterritorial jurisdiction in the Bill before your Lordships is considerably narrower than it was in the Bill that was originally introduced.
	Clause 17 now provides what is effectively the minimum extraterritorial jurisdiction required to enable the United Kingdom to fulfil its international obligations and to enable us to ratify the Council of Europe Convention on the Prevention of Terrorism and the UN Convention on the Suppression of Nuclear Terrorism. I shall explain why those conventions require us to deal with extraterritorial jurisdiction in this way. I do so by reference to the Council of Europe convention, but exactly the same arguments apply, mutatis mutandis, to the UN convention.
	Article 14 of the convention requires a state party to establish extraterritorial jurisdiction for the offences under the convention in a number of circumstances, including, for example, if the offender is a national of a state party, regardless of where the offence is committed. So we must take jurisdiction over a convention offence committed anywhere in the world by a United Kingdom citizen.
	Secondly, Article 14 of the convention requires us in most situations where a person accused of committing an offence is wanted by another party to the convention and is found in our territory either to extradite the person or try him ourselves. That is a standard international convention provision. In such a case, our preference would always be to extradite, but as your Lordships will know, the Extradition Act 2003 sets out various reasons why in certain cases we cannot accede to an extradition request. So extradition can never be guaranteed.
	That being so, we need to have jurisdiction so that we can take the prosecution option, whatever the nationality of the offender and whatever the offence that has been committed. So Clause 17 reflects those requirements. It provides that for offences in Clauses 1 and 6 of the Bill, which are necessary to enable us to ratify the European convention, we take extraterritorial jurisdiction in respect of them so far as they relate to convention offences. That is narrower than was originally in the Bill and it represents what we suggest is the absolute minimum extraterritorial jurisdiction necessary to allow us to ratify the Council of Europe Convention on the Prevention of Terrorism.
	Similarly, we take the minimum necessary extraterritorial jurisdiction over the offences in the Bill designed to enable us to ratify the UN convention. Amendments Nos. 99, 99A and 100 would narrow still further the scope of extraterritorial jurisdiction. In every case, the effect would be that our law would not be fully compatible with the requirements of the Council of Europe convention. Additionally, in the case of Amendment No. 99, we would be out of step with the UN convention. That would be most unfortunate. It would undermine a major motivation in bringing the Bill forward in the first place; it would also seriously embarrass the United Kingdom in all our contact with our fellow signatories to the conventions; it would send a very unfortunate signal to all our international partners; and it would suggest that we are not truly committed to combating terrorism wherever it is found.
	I cannot believe that that is the intention of Her Majesty's Loyal Opposition and I cannot believe, bearing in mind the vigour with which the Liberal Democrats have always sought to support international conventions, that that is their intention either. We have all repeatedly professed ourselves to being wholly committed to combating terrorism internationally. Therefore, it is incumbent upon us to show that we stand together with our international partners in refusing to accept terrorism wherever it is found. Therefore, I strongly urge the noble Lords, Lord Kingsland and Lord Goodhart, not to press their amendments. I can only think that the noble Lords may have forgotten the connection between those conventions and these provisions.
	Amendments Nos. 101 and 102 were tabled by the noble Lord, Lord Elton. I understand that what he really wants is to elicit from me an explanation of why we have drawn the terms of the Bill in the way that we have. In Clauses 17(5) and (6), the Bill makes a useful change to the Explosive Substances Act 1883. At present, it is an offence under the Act to plan explosions that endanger life only if they are to take place in the United Kingdom or the Republic of Ireland. Preparing for an explosion that is to take place in another country is not an offence. I suspect that this is a legacy from a very different age, when travel was difficult and the notion of being able to transport explosives easily and plan an explosion in another country would have seemed pretty far-fetched. The Bill simply closes an historical loophole.
	I am sure that noble Lords know that terrorism is a reserved matter under the Scottish devolution settlement. However, the operation of the 1883 Act in respect of non-terrorist matters—that is, preparing for an explosion to get into a bank in connection with a robbery—is a devolved matter. Accordingly, the provision in the Bill relating to the 1883 Act extends its territorial application so far as conduct in Scotland is concerned only where the planned explosion is connected to terrorism.

Lord Elton: The words "in relation to Scotland" puzzle me in this context. Do they mean that the planning is done Scotland or that the explosion is intended to take place in Scotland? If I am in Edinburgh and I plan something in Puerto Rico, is that caught? If I am in Puerto Rico and plan something in Edinburgh, is that caught?

Baroness Scotland of Asthal: The noble Lord would be caught by the Bill if he planned an explosion in connection with terrorism. If he planned an explosion to blow up a bank, then the Scottish authorities would have authority over him if the bank is in their jurisdiction. But if the explosion was a terrorist act, then he would be caught by the new way it is dealt with.

Lord Elton: That was very lucid, but did not quite answer the question I asked. It was not, "What is the relationship with terrorism?", but, "What is the relationship with Scotland?". It is only "in relation to Scotland" that this exemption bites. An explosion, not in a bank, but in a barracks, which would be caught by terrorism, is clearly related to Scotland, but if, in Scotland, I am planning something to happen abroad, is that an offence in Scotland, or is it an offence abroad? Does it come within this provision, or does it not?

Baroness Scotland of Asthal: The provision refers to the behaviour in Scotland; conduct in Scotland refers to planning in Scotland. Accordingly, the provisions in the Bill relating to the 1883 Act extend its territorial application so far as conduct in Scotland is concerned only as I have just described. The noble Lord's amendment seeks to change that by making the extension in Scotland apply to all types of crime.

Lord Elton: I accept that by what the noble Baroness has already said.

Baroness Scotland of Asthal: I hope, therefore, that the noble Lord will also be satisfied that the changes that we make in respect of terrorist explosions being planned in Scotland should apply to all planned explosions. That is a matter for the Scottish Parliament. The noble Lord could make his case to Members of that august body in relation to any other sorts of explosions.
	Amendment No. 101 also seeks to confer extra-territorial jurisdiction for offences under the Explosive Substances Act 1883. That is not necessary since it is already achieved by Section 62 of the Terrorism Act 2000. In the light of what I have said, I hope that each noble Lord will be satisfied that the amendments they have proposed are not necessary and that the Bill as currently drafted will permit us to meet our international obligations in a way with which they can concur.

Lord Goodhart: Before the noble Baroness sits down and the noble Lord, Lord Kingsland, replies, perhaps I may ask a probing question because I am puzzled. Article 5 of the Council of Europe convention, which is one of the relevant conventions, deals with public provocation to commit a terrorist offence. It says that,
	"'public provocation to commit a terrorist offence' means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed".
	It seems to me that that applies more obviously to Clause 2 than it does to Clause 1. Therefore, I am a little puzzled to find that it is Clause 1 but not Clause 2 to which Clause 17 of the Bill applies.

Baroness Scotland of Asthal: We looked at this issue carefully. The view taken was that it does apply to Clause 1 and that Article 5 could be implemented in the way I have just described. I would certainly be more than happy if the noble Lord wishes me to write to him setting out our justification more fully. I should be happy to do that. I notice that it is ten to eleven. We have hopes and expectations of doing a little more today, and I think that it would take me a little longer than 10 minutes to explain it all to everyone's satisfaction.

Lord Elton: Perhaps I may ask the noble Baroness therefore to write with the answer to a very simple question, to which I should know the answer. The decision to have this measure of extra-territoriality is a very sweeping and important matter. At what stage was it debated in the House? Was it a treaty matter that was dealt with under the Royal prerogative or was it something done in Parliament? A letter would be much appreciated.

Lord Kingsland: In the light of the interventions by the noble Lord, Lord Goodhart, and my noble friend Lord Elton, and given the observation by the noble Baroness about the strictures of time, perhaps the happiest way to resolve this stage of our Committee work is to thank the noble Baroness for offering to write. In order to move further we need to be clear about what the underlying international treaties do or do not require; because from that will flow what ought or ought not to be in this text. I share the hesitations of the noble Lord, Lord Goodhart, about the interpretation of Article 5. However, I think that the best thing to do is to leave it and to communicate between now and on Report. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.
	[Amendments Nos. 99A to 102 not moved.]
	Clause 17 agreed to.
	Clause 18 agreed to.
	Clause 19 [Consents to prosecutions]:

Lord Cameron of Lochbroom: moved Amendment No. 103:
	Page 17, line 32, at end insert—
	"(c) may be instituted in Scotland only with the consent of the Lord Advocate"

Lord Cameron of Lochbroom: The amendment would add a further paragraph to subsection (1), which would provide that in Scotland proceedings for any offence under this part of the Bill, which includes Clauses 1, 2 and onwards, may be instituted in Scotland only with the consent of the Lord Advocate. It is important to bear in mind that the office of the Director of Public Prosecutions has no similar office in Scotland. The Lord Advocate is the head of the system of prosecution and investigation of crimes in Scotland and is, of course, a Scottish Minister. Furthermore, I should add that he has statutory power to instruct the police in the investigation and reporting of crime under Section 17 of the Police (Scotland) Act 1967 and Section 12 of the Criminal Procedure (Scotland) Act 1995.
	For the system of prosecution in Scotland, serious crimes are indicted in his name and are prosecuted in the High Court by advocates depute who hold his commission and, in the sheriff's court, by procurators fiscal, who are permanent prosecutors, but procurators fiscal also prosecute summary offences in the sheriff's court by way of complaints laid by them without reference to the Lord Advocate. In the clause, there are two parts concerning proceedings in England, Wales and Northern Ireland. In subsection (1), proceedings,
	"may be instituted in England and Wales only with the consent of the Director of Public Prosecutions",
	and similarly in Northern Ireland. Subsection (2) deals with an offence,
	"committed for a purpose wholly or partly connected with the affairs of the country other than the United Kingdom".
	In that case, the Attorney-General must give permission in the case of England and Wales and the Advocate General for Northern Ireland.
	There is no difficulty in Scotland, in the sense that all offences, whether they be offences of the kind covered by subsection (1) or (2), would be subject to the overall responsibility of the Lord Advocate. The important thing is that the Bill provides that certain of the offences can be prosecuted summarily—that is to say, in the sheriff's court by procurators fiscal who would lay a complaint and would not be required to refer the matter to the Lord Advocate.
	I have no doubt that it will be said in response, "Ah, yes, but the Lord Advocate can give directions in such matters". But in a Bill such as this, in which there is a very important public interest, it should be made absolutely plain that all proceedings in Scotland proceed with the consent of the Lord Advocate. That would mean not only indictments, which would in any case proceed in his name, but those matters that were dealt with summarily, many of which could well raise important or delicate issues that could require his consent. It is with that in mind that the amendment has been drafted. I beg to move.

Baroness Scotland of Asthal: I assure the noble and learned Lord that his amendment is unnecessary. I absolutely agree with the way in which he has described the process in Scotland, the role of the Lord Advocate and the role of the procurators fiscal.
	It would perhaps be helpful if I said a little about Clause 19, to which the amendment refers. It provides that prosecutions for the offences in Part 1 can be brought in England and Wales only with the consent of the Director of Public Prosecutions, or the consent of the Director of Public Prosecutions for Northern Ireland, in the case of offences committed there. An additional safeguard relates to offences that the Director of Public Prosecutions determines have been committed for a purpose wholly or partly concerned with the affairs of another country. As the noble and learned Lord indicated, proceedings for those offences can be brought only if the Attorney-General, or the Attorney-General or Advocate General for Northern Ireland, agrees with the decision of the Director of Public Prosecutions to consent.
	The noble and learned Lord, Lord Cameron of Lochbroom, and the noble Lord, Lord Elton, whose amendment we will deal with later, have very properly asked why there is nothing equivalent for Scotland. I include the noble Lord, Lord Elton, because it very much responds to the point raised by the noble and learned Lord, Lord Cameron of Lochbroom. The answer is simple, as I am sure the noble and learned Lord knows: as he has just said, all prosecutions in Scotland are instigated by the procurators fiscal on behalf of the Lord Advocate. Since no other individuals have authority to prosecute, there is no need to seek the Lord Advocate's consent. He is the only prosecutor. Therefore, the existing safeguards are sufficient.
	I invite the noble and learned Lord's attention to Section 117 of the Terrorism Act 2000, which provides for consent for prosecution under that Act. Again, there is no provision for Scotland to reflect the structure of prosecutions there and I see no reason why we should depart from that precedent. It is absolutely clear that the Lord Advocate's position and that of the procurators fiscal is preserved without any need for its restatement in the Bill. I hope that I have assuaged the noble and learned Lord's concern that Scotland is still safe, unblemished by the Bill.

Lord Cameron of Lochbroom: I am grateful to the Minister for the reply. I was aware of the provision in the Terrorism Act to which she refers. Had I been about my work at that time, I think that I would have raised the same point. However, I accept that, although it is not entirely correct to say that procurators fiscal always act under, or with the consent of, the Lord Advocate—they have a width of discretion in summary proceedings—they do not necessarily have to apply to the Crown Office for further instruction. I can see that perhaps the answer more properly would be that the Lord Advocate will issue directions that all those matters must be reported to him before proceedings are taken. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at three minutes past eleven o'clock.